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![handle is hein.slavery/ssactsengr0033 and id is 1 raw text is: HALL V. CAZENOVE
to pay 51 a-year; and held to be a reservation. [Lord Ellenborough C.J. Is there
not a general rule which overrides all these cases, namely, that the words of the deed
shall enure according to the apparent intent of the parties, as by law it may; as in
Lord Mounijoy's case, Moor. 174; where a proviso, though usually taken as a word of
condition or covenant, yet coupled with and explained by other words, was holden to
operate as a word of grant? There is no magic in words.] Here then the intent was
that Ed. Hyde should have the exclusive right to the coal; and Lord Mountjoy's case
is an authority for that construction. And there need no authority to shew that Ed.
Hyde had a fee. Lord Mountjoy's case is more fully reported in 1 And. 307, where it
is stated that he, being seised of two parts of the manor of Sanford, by indenture
inrolled, bargained and sold the same to J. and C. B. and to the heirs of J. ; which
indenture, after several covenants, proceeded thus : Provided always and it is- cove-
nanted, granted, concluded, and agreed between the said parties, and the said J. and
C. B. and their heirs covenant and grant to and with Lord Mountjoy, his heirs, &c.
that it shall be lawful to and for the said Ld. M., his heirs, &c. at all times hereafter
to have, take, and dig in and upon the heath ground of the premises from time to
time sufficient ores, heath turves, &c. for the making of allum or copperas, and to
build, &c. without let or interruption of the said J. and C. B., their heirs, &c. And
the opinion of the Judges, amongst other points, was, 1, that the two parts were
sufficiently conveyed to the said J. and C. B. absolutely without any condition;
2, that Ld. M. by the assurance passed by him and J. and C. B. had sufficient
interest [476] and right in fee to dig such turves, ore, &c. as mentioned in the proviso.
[Lawrence J. There Lord Mountjoy was seised of the legal estate at the time of the
grant, which makes all the difference.] Lord Mountjoy's case was only a liberty to
dig ore, &c. for a particular purpose.
Lord Ellenborough C.J. Even if E. Hyde had been seised of the legal estate, which
he was not, yet the liberty reserved of digging for coals could not give him the
exclusive right to them. No case can be named where one who has only a liberty of
digging for coals in another's soil has an exclusive right to the coals, so as to enable
him to maintain trover against the owner of the estate for coals raised by him. The
case of Lord Mountjoy as cited from Anderson, is decisive against the plaintiff; and
still more as it is reported in Godbolt (a), which is directly in point. Those who
compared it to a graitu of common sans nombre used that as the strongest instance to
shew that ib could not be an exclusive right.
Lawrence J. The covenant in this case cannot operate as an exception or reserva-
tion in favour of Ed. Hyde, who had no legal estate in him at the time, but only the
equity of redemption. He was in law no more than a stranger to the estate, and
could not except or reserve that which he had not before. The covenant, therefore,
can only operate as a grant; but a grant will not pass the land itself without livery.
Per Curiam. Judgment for the defendant.
Wood was to have argued for the defendant.
[477] HALL against CAZENOVE. Friday, Feb. 3d, 1804. One may declare in cove-
nant that the deed was indented, made, and concluded on a day subsequent to
the day on which the deed itself is stated on the face of it to have been indented,
made, and concluded. Where a charterparty, dated 6th of February, but averred
not to be executed till the 15th of March, contained a covenant by the owner
that the ship should and would proceed from D. where she then lay on or before
the 12th of February, on her outward-bound voyage, and return, &e. and a cove-
nant by the freighter that in consideration of every thing above mentioned, &c.
he would pay certain freight for the voyage; the voyage being averred to be
performed, and the freight earned, the owner may recover in an action of cove-
nant, without averring that the ship sailed on or before the 12th of February ;.
such covenant that the ship should sail on or before the 12th of February being
either no condition precedent, but only an independent covenant, for breach of
which the party had his remed in damages; or not of the substance of the con-
(a) Godb. 17. And vide also 4 Leon. 147, S. C., where it is said that the justices
were of opinion that Brown and his heirs, notwithstanding the grant to the lord,
owners of the soil there might dig there.
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4 EAST, 476.](ViewImageLocal?handle=hein.slavery/ssactsengr0033&div=1&collection=&method=preview&ext=.png&size=3)