terference, it may well be considered that he has consented to the bounder's proceedings; and the customary render of the portion called toll tin may be a very sufficient consideration to him for what he gives up of his original exclusive rights.

"This then brings us to the point

whether this

customary right can exist without continuing bona fide to search for tin and to work the land for mining purposes within the inclosed limits; whether it is sufficient merely to renew the bounds annually by a new cutting of the turves as at the commencement."1

And the learned judge, after discussing the custom in all its features, and its manifest invasion of common-law property rights, and that the "only things," using his words, which made it reasonable were the rendering of the toll tin, and the supposed benefit to the public secured by the production of the mineral, and after discussing the question at length and the failure in his estimation of these provisions of toll rent and the public benefit to be gained, as fully satisfying the requirements of a common-law custom in respect to its reasonableness, decided emphatically that the mere renewing of boundaries could not be held sufficient nor could it be done without in good faith pursuing the mining operations. Said he: "The condition that the bounds. shall be annually renewed by new cutting of the turves is useful for keeping the limits well ascertained, and also for preserving the evidence of ownership; but it is no substitute. for the working itself, considered as the ground on which the reasonableness of the custom rests.'

992

1 Rogers v. Brenton, 10 Q. B. 26; Cornwall, p. 94; Stat. 16 Geo. II., Coll. Mines. pp. 39-41. 8; 26 Geo. II, 4, 8, 9, 12 and 13; 7. & 8 Vict., ch. 105, §§ 32, 84; 1 & 2 Vict., ch. 120; Plowd. 336; Rowe. v. Brenton, 3 M. & R. 497; Tannistry v. Davis, 17 L. J. (N. S.) 28; Attorney-General v. Mathias, 27 L. J. Ch. 766; Fawcett v. Lowther, 2 Ves. Sen. 303; Grinney v. Stocker,

Rogers v. Brenton, supra; Coll, Mines, p. 43; Bastard v. Smith, 2 Moo. & Rob. 129 (see note of Mr. Smirke at the end of this case). See also Bainbridge, Mines (1st Am. from 3d London ed.), 6, 7; Laws Stan., p. 54; Vin. Abr. 10; Dod.

§ 34. Other customs-Measuring the meers in Derbyshire. By the customs recognized in certain portions of Derbyshire, relating to lead mines, any subject of the realm might enter and search for ore in all lands and places within the district, excepting churches, burial grounds, dwellinghouses and highways. This custom was in force mostly in the High Peak mines, although there was a similar one which obtained and was called the customs of the Low Peak. By these latter customs, as defined by the Court Barmote, it was declared that by ancient custom a bar master should be chosen, who should be indifferent between the lord of the manor and the miners. The bar master, on receiving notice of a new discovery of a rake vein, was required to measure off and deliver to the finder two meers of ground, which were twenty-nine yards in length along the vein and generally fourteen yards in width. One of these meers was intended as a reward to the finder of the vein. Thus, we have in this ceremony the equivalent of the practice in Mexico and other Spanish possessions, and which afterwards obtained in California and other western states and territories, whereby the officer, usually the mining recorder, went upon the ground and assisted in measuring the claim. Likewise, the counterpart of the law which obtained in California prior to the statute of 1866, and which found expression in that statute, whereby the discoverer was allowed an extra claim for discovery.3

The customs of the High Peak in Derbyshire have been lately recognized by statute. They do not differ materially

34 L. J. Ch. 633; Gavee v. Martyn, 19 C. B. 732; Vice v. Thomas, Smirke Stannary Rep. 35; Doe v. Alderson, id. 29, 1 M. & W. 210; Crease v. Barrett, Cr. M. & R. 919; Blewitt v. Tregonning, 3 Ad. & E. 554; Rogers, Mines, ch. 16; Dyer, p. 60. 1 B. & W. Lead Cas., p. 102, citing Bainb. Mines (3d Eng. ed.), ch. 16, p. 655; Rogers, Mines, chs. 15, 16; Arundell, Mines, ch. 2.

2 Arundell, Mines, ch. 2.

3 Act of Congress of July 26, 1866 (14 Stat. at L., p. 251).

414 & 15 Vict., ch. 94. See also Bainb. Mines, 665; Hardy's Miners' Guide, 1748; Beresford v. Bacon, Lut. 418; Gilbert v. Tomison, 4 D. & R. 222; Doe v. Pearce, Peake's Add. Cas. 242; Attorney-General v. Wall, 4 Brown P. C. 665; Arkwright v. Cantrell, 7 Ad. & Ell. 565.

from the Low Peak customs, except that they more clearly recognize and establish the size of the claim. If the vein was a rake vein, that is, one having an inclination to the horizon, the miner was allowed an extra surface right of four to six yards of ground. Here we have the first idea in England, and one of the foundations for the law in this country, of following the vein on its dip.

§ 35. Width of surface ground allowed - Other surface customs. By width is meant the rake or dip of the vein as allowed by the custom. This was found in some cases insufficient, and this custom gradually gave place to another, whereby the fixed quantity in width, which was fourteen yards, was, in certain necessary cases, extended, when it became necessary to extend the width as shown in the last section; and it also became permissible for the bar master, with the aid of two of the jury of the county, to measure out, in measuring the meer, such additional ground as the miner might need, in connection with his vein, for the purpose of dumpage, laying rubbish and dressing his ore. This was called the "quarter cord," as it originally consisted of a quarter of a meer in breadth. Whether this was to be measured from the middle of the vein or from the walls was not a settled question. It is needless to say that it was generally secured in the direction of the rake or dip as far as possible. Before any ground could be set apart, however, it was necessary to "free the meer." This was accomplished by delivering to the crown officer, or the person representing him, the first dish of ore. This dish was provided by the bar master and was sufficient in size to hold fifteen pints of water. In like manner each successive meer allotted was "freed." This ceremony was equivalent to livery of seisin, and without it the title did not pass. Certain royalties were exacted from the miner which were called "lot and cope." A lot meant usually one-thirteenth part of all the ore raised, which was payable to the crown or its representatives. Cope was four pence for every load

of ore, a load consisting of nine dishes. It was also necessary that the mine should continue to be thoroughly worked. Originally, if it was capable of being worked and was suf fered to remain idle, the bar master was required to "nick the spindle" once a week. The spindle being a stake driven in the ground marking the boundaries of the meer, and the "nick" was a notch, and when these notches aggregated in number the amount allowed by the custom of the manor, or the particular place, a forfeiture was declared unless work was resumed within three weeks. The right of possession was guaranteed as long as the regulations were complied with. The mine thus secured became an estate of inheritance, was liable to dower, descended to the heirs, and was capable of absolute disposition. Thus we have in this custom another example and foundation of the early requirements of annual labor or representation work and of marking the boundaries. We have also the foundation for another feature of the present mining law, in the royalty payable to owners where mines are operated under leases.

§ 36. Similar customs in Gloucester-Gales-Free miner Definition and rights. There was also a custom in the forest of Dean by which free miners within the hundred of St. Briavels were entitled to have granted to them "gales" of the mines of coal and iron, and leases of the quarries of stone, within the lands of the crown, and within inclosed lands under certain restrictions. By the term "free miner" was meant all male persons born and abiding within the hundred, of the age of twenty-one years and upwards, who had worked a year and a day in the mines within the hundred. They were required to register with the gavaler or his deputy, he being the representative of the crown. A "gale was the name given to the holders of mines of coal or iron and quarries of stone, a "free miner" acquiring a "gale"

1 Bainb. Mines (4th ed.), p. 41; 1 Am. from 3d London ed., pp. 5-8 and note; 14 & 15 Vict., ch. 94.

1

being called the "galee," and the rents being called "galeage." A "gale" was required by written application after approval by the commissioner and the bounds were marked, and the galee was obliged to work in an orderly manner and not desist for five years at any one time. The estate was in the nature of a fee simple, might be disposed of by will, and descended to the heirs.2

§ 37. Origin and antiquity of these customs. The origin, in the counties of Cornwall, Devon, Gloucester and Derby, of the customs we have mentioned seems not well or accurately known. Mr. Collier speaks of them as of very long standing. They probably originated in the laws. of Cornwall, existing before the Roman invasion. Similar customs existed in France, Belgium, and probably some other parts of Europe. The earliest evidence of the custom in Cornwall is found in a statute or charter granted in the third year of the reign of King John to the tinners of Cornwall and Devon, which speaks of it at that time as ancient.* These customs have been repeatedly recognized by statute but the purposes of this work do not require an extended reproduction here.

ARTICLE B.

Stannary Courts and Stannary Parliament.

§40. Introductory and historical-The stannaries and the derivation

of the term.

41. Of the organization of the stannary courts.

42. Jurisdiction and functions of the stannary court between tinners, and between tinners and others.

1 McSwinney, Mines, p. 482. 2 McSwinney, Mines, pp. 483, 489. Free Miner in Canada.-The term "free miner" has been used in the Canadian provinces to designate the qualifications of a person entitled to acquire mining property, and means any person or joint-stock company in possession of a free miner's certificate. Act New Brunswick 1891, 98 and 99,

§ 2; Act governing placer mining in Yukon district, Jan. 16, 1898, § 1; Reg. Manitoba, July 21, 1897. These certificates may be obtained by any person or corporation upon application and payment of a fee.

Coll. Mines, p. 22.

4 Coll. Mines, p. 22. See also Doe v. Pearce, 2 Peake M. P. C. 242; Gilbert v. Tomison, 4 D. & R. 222.