The choice of the mortgage creditor cannot make a distinction on any principle; and, therefore, Lord Hardwicke seems to have held that, even in the case contemplated by Lord Thurlow in a different view, no such right can exist on the part of the general creditors. The only way in which any question, as regards the right of the creditors, could arise seemed to me to be, as in Copis v. Middleton (T. & R. 224), whether payment of the debt might not reduce the surety to the position of a simple contract creditor. However, that doctrine would not apply to a case where an executrix paid her testator's debt, because she would be entitled, independently of her rights as a surety, to be recouped out of the testator's estate, and, for that purpose, to stand in the place of the party so paid.

The decision in Tidd v. Lister (10 Hare, 157) went upon a different ground. That was a simple case of marshalling; the wife had joined in two mortgages, and, therefore, each creditor had a right to say, I insist, as you have parted with both estates, that other creditors shall not be paid out of my fund. That is the ordinary case of marshalling.

I consider the executrix, therefore, to be entitled to the amount paid, though it was quite right not to allow this payment in account; because the question of costs remains behind, and they might exhaust the estate.

[624] MANN v. FULLER. June 5, 1854.

[S. C. 2 Eq. R. 1085; 23 L. J. Ch. 543; 2 W. R. 510.]

Will. Construction. Interest. Legacy given "in addition."

Bequest of one thousand pounds to A., the interest of two thousand to B., and, at his death, to his children, the sum of one thousand pounds to D., the sum of one thousand pounds to B., in addition to one thousand before mentioned: Held, that the former legacy to B. was of pounds sterling, and that the gift to his children was of an absolute interest in the capital.

Held, also, that the reference to the former legacy in the latter gift to B. did not diminish the previous legacy; and that the latter legacy was given to B. absolutely, and not to him for life, and then to his children.

Legacies given "in addition to" previous gifts to the same person only partake of the same incidents, where the former gifts are absolute or defeasible; but the doctrine has never been extended so far as to alter an absolute gift of the latter legacy into a gift to the legatee for life, and, after his death, to other persons.

George Sargon, by his will, dated in 1842, bequeathed as follows:-"One thousand pounds to Ann Sargeant, wife of Thomas Sargeant . . . The interest of two thousand to George Sargeant, and, at his death, to his children: The sum of one thousand pounds to James Sargeant: The sum of one thousand pounds to Thomas Sargeant: The sum of two thousand pounds to Ann Sargeant: The sum of one thousand pounds to George Sargeant, in addition to one thousand before mentioned."

The assets were insufficient to pay these legacies in full.

Mr. Rolt, Q.C., and Mr. Baggallay, for the Plaintiff, Mr. Eddis, for the executor, Mr. Elderton and Mr. Sidney Smith, for other parties, suggested that the former legacy to George Sargeant and his children was not expressed to be in pounds, and might be void for uncertainty; or that, as only the interest was given, it was not an absolute bequest to the children; or, if it was, then the subsequent gift, referring to the former as one thousand, shewed that the testator's intention was only to give to George Sargeant £2000 altogether; and that, in any case, the £100 last given must be subject to the like limitations as were expressed concerning the former gift; Ocerend v. Gurney (7 Sim. 137), Bristow v. Bristow (5 Beav. 289).

[625] Mr. H. C. Jones, for George Sargeant. The first legacy to George Sargeant must be in pounds sterling, because the previous legacies are given in pounds sterling, and no stock legacies are previously given; and a gift of the interest of a sum of money for ever is a gift of the capital. Gordon v. Hoffman (7 Sim. 29) decides that V.-C. XIV.-9*

the mistaken reference to the former legacy will not cut it down. In re More's Trust (10 Hare, 171) shews that an executory limitation of the latter legacy to George Sargeant's children cannot be implied.

Mr. Messiter, Mr. Reilly and Mr. Fane, for other parties.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. The first two points are clear. On this will there is nothing to raise a doubt as to what the numerals in the gift to George Sargeant refer to. All the previous legacies being of pounds sterling, and no sums of stock having been previously given, which might have caused some little ambiguity, it is impossible to say that the gift of two thousand does not mean two thousand pounds sterling.

I am also of opinion that the gift of the interest of the two thousand pounds to George Sargeant, and, at his death, to his children, is a gift to the children of the capital sum on the death of their father.

The real question is whether the bequest of one thousand pounds to George Sargeant, in addition to one thousand before mentioned, the sum before given having been two thousand, does not raise an inference that the intention was to give two thousand pounds only; and there is [626] some reason under such words for the argument that this was the testator's meaning. But, on the other hand, there is the decision in Gordon v. Hoffman (7 Sim. 29), where a testator, by codicil, gave to his son a legacy in addition to the legacy of £2000 given by his will, having, in fact, given him more than £2000 by the will; and the late Vice-Chancellor of England in that case held that the plain gift in the will was not to be cut down by an uncertain expression in the codicil. The present case is somewhat stronger, because the testator has settled the former sum of £2000 and has given the other, as I think, absolutely.

I quite concur in what was said by the Lord Justice Turner in the case of More's Trust (10 Hare, 171) that, where there is a gift by will to A. for life, and, after his decease, to B., and then another gift to A. in addition to what was before given, there is no authority for carrying on the series of limitations to the latter gift, so as to convert it into a gift to A. for life, and then to the party who was named in the former gift to take after A.'s death. It would be more plausible to say that a life interest only was given to A. in the second case, but that would be inconsistent with the words of this will. The cases have not gone further than this: where the subject of the first gift is given absolutely to the party or is made defeasible the second gift has been held to be given upon similar terms; for example, if the former gift were absolute and free of legacy duty, the additional gift has been held to have all the same incidents; so, if the former gift is to be lost on a certain event, the additional gift is to be defeated on the same condition. In no case has it been held that the latter gift is to go to the parties entitled under the subsequent limitations of the former gift.

[627] RIDGWAY v. SNEYD. June 6, 7, 1854.

[See Simpson v. Ingleby, 1872, 26 L. T. 545.]

Mining Lease. Minimum Rent. Injunction.

Coal mines were demised at a certain royalty per ton upon the coal which might be got, and also at the rent of £300 a year, or so much thereof as with the royalty should amount to that sum, such rent of £300 to be a minimum rent for the coal demised. And the lessee covenanted to pay the rents, and to work the mine. Held, that a Court of Equity would not restrain an action by the lessor for the minimum rent, although the coal proved to be not worth the expense of working; but that, if the lessor were to sue upon the lessee's covenant to work the mine, the Court would interfere.

In applying the rule of caveat emptor to the case of leases of coal mines it must be remembered that everyone acquainted with that kind of property is aware that coal mines are liable to be interrupted by faults.

If all the coal had been gotten by ancient workings that might be a case for equitable relief.

John Ridgway, the Plaintiff in this cause, being the lessee and occupier, under different landowners, of adjoining mines and collieries, took from the Defendant a lease for twenty years, by an indenture, dated the 25th of December 1848, and made between the Defendant of the one part and the Plaintiff of the other part, of all the mines, veins, beds or strata of coal, cannel and slack, then opened or known, or which should at any time during the continuance of the said demise be found lying under the closes of land therein described, part of which belonged to the Defendant, and part had been sold by the Defendant to Richard Baddeley, reserving to the Defendant the coal under them, and power to get the same; and the Defendant also demised to the Plaintiff, in like manner, certain surface land, yielding and paying to the Defendant for the whole of the coal and cannel thereby demised, which the Plaintiff should get during the continuance of the demise, the rent and royalty thereinafter mentioned, that is to say, the sum of 1s. for every 2520 lbs. weight of such coal or cannel, and so in proportion for a less quantity than 2520 lbs. And also yielding and paying to the Defendant for the whole of the slack thereby demised, which the said Plaintiff should get during the continuance of the demise (except such part of the said slack as therein particularly mentioned), the rent and royalty thereinafter mentioned (that is to say), the sum of 6d. for every 2520 lbs. weight of such slack, and so in proportion for a less quantity than 2520 lbs. And also yielding and paying yearly and every year during the continuance of the said demise unto the said Defendant for the coal, cannel and slack thereby [628] demised the rent or sum of £300, or such part thereof as with the several rents, royalties and sums of money thereinbefore reserved would amount to that sum; and yielding and paying £4 per acre for the surface land demised: all such rents and royalties to be paid half-yearly upon the usual quarter days in June and December. And it was thereby provided and declared that the said yearly rent or sum of £300 thereinbefore reserved was so reserved as and for a minimum rent for the said coal, cannel and slack thereby demised, in each and every year during the continuance of the said demise; and that, subject to the proviso thereinafter contained, anything therein contained should not in any wise prejudice or affect the right of the said Defendant to have or receive the whole of the several other rents, royalties and sums of money therein before reserved in respect of such coal, cannel and slack in each and every year during the continuance of the said demise, in which the same should exceed the sum of £300. And the lease contained clauses usual in mining leases, dividing the whole term into periods, at the end of which, if the rent and royalty thereby reserved in respect of the said coal, caunel and slack (exclusive of the said annual rent of £300 and the surface rent of £4 per acre) should exceed, in the aggregate, £300 a year, and if in any year of such period the several rents, royalties and sums of money, exclusive of the said annual rent of £300, and the said rent of £4 per acre, should not amount to the sum of £300, then the Plaintiff should be entitled to deduct from the excess of the aggregate amount of such rents, royalties and sums of money for such five years, above the sum of £300 a year, any sum which he might have paid to the Defendant in any year or years of such period, to make up the rents, royalties and sums of money therein before reserved in respect of the said coal, cannel or slack to the sum of £300 in each of such years.

And it was thereby also provided and declared that the [629] mines of coal, cannel and slack thereby demised should (subject as thereinafter mentioned) be worked and gotten in the same progressive and regular course as the mines of coal, cannel and slack of the Plaintiff in and under the land adjoining thereto. And the Plaintiff covenanted for the due payment of the said rents and royalties; and that the Plaintiff and his agents, servants, workmen and miners would, from time to time and at all times during the continuance of the said demise, work, raise and get the mines thereby demised in and under the said lands of the said Defendant, and also, subject as thereinafter mentioned, the mines in and under the lands of the said Richard Baddeley continuously, uninterruptedly and in proper and workmanlike manner, and in the same progressive and regular course as the mines of coal, cannel and slack of the Plaintiff in the said lands adjoining thereto should be gotten, obtained and raised, and clear the said mines thereby demised in and under the lands of the said Richard Baddeley in the best way, as was usual in mines and works of the like description.

And that if at any time during the continuance of the said demise the mines of coal, cannel and slack, or any of them, in and under the lands of the said Richard Baddeley, or any part or parts thereof, could not, by reason of the damage which would be occasioned thereby to any erections on the said lands of the said Richard Baddeley, or to any mill to be thereafter erected thereon, or any part or parts thereof, or from any other cause whatsoever (except any cause arising from the act or omission of the said Plaintiff or his agents, servants or workmen), be worked, obtained, gotten and raised with profit and advantage to the said Plaintiff, then and in such case the said Plaintiff should not be called upon or required to work, obtain, get or raise any such part of the said last-mentioned mines. And in case of disagreement, the fact of the said Plaintiff being able or unable to work, [630] obtain, get and raise the said mines, or any of them, in and under the said lands of the said Richard Baddeley, or any part thereof, with profit and advantage for the reasons aforesaid, should be ascertained by reference to arbitration as thereinafter mentioned. And the said indenture contained powers of entry and distress in case all or any of the rents, royalties or reservations therein before reserved, or the sum or sums of money thereinbefore made payable, should happen to be unpaid for the space of fourteen days next after any of the said half-yearly days or times therein before appointed for the payment thereof. And a proviso for re-entry upon the said mines and lands in the events therein mentioned. And the usual provisions for arbitration, in case, during the continuance of the said demise, or after the expiration thereof, any variance, controversy, doubt, dispute or question should arise between the said parties thereto touching or relating to the said indenture, or any clause, covenant, proviso, matter or thing therein contained, or the construction of the same, or touching or concerning the practicability of the getting of any part of the thereby demised mines, according to the usual course of mining operations, or in any respect relating to the thereby demised mines and premises.

The Plaintiff had discontinued the working of the mines, and the Defendant had brought an action against him for the minimum rent of £300.

The Plaintiff filed this bill, praying for an injunction to restrain the Defendant from all further proceedings in the action commenced by him against the Plaintiff, and from commencing or prosecuting any other action or proceeding against the Plaintiff upon any or either of the covenants contained in the said lease, and for an account of the quantity of coals, cannel and slack by the said lease capable of being raised at the date thereof from [631] the said mines, allowing necessary pillars to support the works, and for fire engines, the Plaintiff offering to pay to the Defendant the sum of 1s. in respect of every 2520 lbs. weight of such coal and cannel, and the sum of 6d. in respect of every 2520 lbs. weight of such slack, on being allowed what he had already paid to the Defendant since the date of the lease.

And, if necessary, that it might be ascertained what quantity of the Defendant's land the Plaintiff had used and occupied in the exercise of the powers and privileges granted by the said lease, the Plaintiff offering to pay to the Defendant after the rate of £4 per statute acre for what should be found to have been used and employed by

him.

And that, upon making such payments as aforesaid, the Defendant might be directed to release and discharge the Plaintiffs from the covenants and agreements contained in the said lease, the Plaintiff offering to execute a surrender of such lease to the Defendant, or as he should direct.

The case was argued upon the assumption that the mines were so much interrupted by faults that, although there was coal, it could not be worked with any profit.

Mr. Daniel, Q.C., Mr. W. M. James, Q.C., and Mr. W. Rudall, for the Plaintiff. This lease has been granted under a mistake common to both parties, namely, the supposition that there was workable coal under this land; and a Court of Equity will relieve against the consequences of a contract so entered into, especially in a case like a lease of mines, where the lessee had no power of ascertaining what was under the land before taking the [632] lease: Lowndes v. Lane (2 Cox, 363), Bingham v. Bingham (1 Ves. sen. 126). The existence of coal was a condition of this lease; and if there be none which can be got the lease cannot be supported: Smith v. Marrable (11 M. &

W. 5). Courts of Equity have interfered in such a case to restrain actions against the lessee for not working. Smith v. Morris (2 Bro. C. C. 311). In Phillips v. Jones (9 Sim. 519) a rent was reserved to be paid whether any coal should or should not be raised; and the working having been discontinued, the Court in that case refused to restrain an action for the rent; but that authority may be questioned, not being consistent with Smith v. Morris (2 Bro. C. C. 311). They cited also Sutton v. Temple (7 Jur. 1065), Rex v. The Inhabitants of Bedworth (8 East, 387). [THE VICE-CHANCELLOR. There may be some ground of equity if the Defendant is bringing an action on the Plaintiff's covenant to continue the working of the mine.]

Mr. Rolt, Q.C., and Mr. Hislop Clarke, for the Defendant. The Defendant has not commenced any such proceeding, nor has he any intention of doing so. He only seeks to recover the £300 rent.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I cannot restrain the Defendant from suing for the rent. Upon the other part of the case this is not an agreement but a perfected contract on which no case for relief has yet arisen. I cannot distinguish this case from Phillips v. Jones (9 Sim. 519). It is said that it is difficult to reconcile that authority with Smith v. Morris (2 Bro. C. C. 311). The principle of the latter decision is sufficiently plain. There was a lease of mines, and the lessee was to pay every year he should work, [633] for 1000 weys 9s. 6d. each. He covenanted, according to the report, that he would "diligently, at his own costs, try for veins of coal, and use his utmost skill to come at the same, and get into working thereof within three years by such pits, engines, &c., as were usual; and would, within one month after he had sunk such pit, constantly (unless hindered by unavoidable accidents) work and raise 900 weys of coals yearly, if so much good merchantable coal might be had out of the same; and, in case so much coal cannot be had (without working the pillars necessary for supporting the work), would pay to the Defendant, &c., 9s. 6d. for every wey of coals which he, &c., should neglect to raise, and which should be deficient of such quantity of 900 weys, the money for the deficiency to be paid at the end of every year; and, if he should neglect to sink a pit within three years, he should pay the Defendant 9s. 6d. per wey yearly for 900 weys, until he should have sunk such pit. And there was a proviso in the deed that, in case, with using diligence, there should not be found a sufficient quantity of coal to work 900 weys a year, or if the lessee during the term should have worked all the coal except the necessary pillars for supporting the work, from thenceforth the lessee should be discharged from the covenant.'

It is stated in the report that "the Defendant brought an action, and assigned seven breaches besides that from not working the mine, which were all given up at the trial; but upon that for not working, although the Plaintiffs proved unavoidable accidents, the jury gave a verdict for the Defendant, and assessed the damages at £427, 10s., which were paid. He afterwards, in Hilary term 1784, brought another action and recovered a verdict on the same breach with £534, 7s. 6d. damages."

Afterwards, two other actions were brought, and the [634] Defendant threatened to bring similar actions every year. Under those circumstances the lessees filed the bill, "charging that, under the circumstances, they were not compellable to work the mine, and that, even if they had worked it, the mine would, before the filing of the bill, have been exhausted, except working the pillars; therefore, that it is contrary to justice that the Defendant should avail himself of the accidents which had happened; but that, upon the Defendant being paid for so many coals as could be got, he ought not to require any further payment under the lease. The bill, therefore, prayed an account of the quantity of coals capable of being raised, allowing the necessary pillars to support the works and for a fire-engine; and, in case it should appear that the Defendant had received a sum equal to the rent payable by virtue of the lease for the same, that he should be restrained by injunction from bringing or prosecuting actions for the rent; or, if it should appear that he had not been fully paid, then, upon payment of so much as he should be unpaid, he should be restrained in like manner."

The Court did not affect to vary the contract or to say that, because it was a lease of mines, in consequence of their turning out to be not worth working, the Defendant was not to have any benefit from the lease. But what the Court said was: If persons