Page:The English Reports v1 1900.pdf/709

On the 17th of April 1727, heads of an agreement in writing were made, whereby William Davidson, esq. agreed with George Liddell, esq. and others, to grant them a lease of liberties of way-leave and watercourse, over and through his lands, grounds, moors, wastes, or commons at Beamish, alias Beamish-park, and Sockerly, in the county of Durham, for the use of their collieries, for such term of years, and under such rent, covenants, and conditions, and with such power of determining the same, as were therein particularly mentioned.

The parties acted under this agreement for a great many years, without any lease having been executed; but in Trinity term 1766, Morton Davidson, esq. as claiming under the said William Davidson, filed his bill in the Court of Chancery, against the respondents, as claiming under the several other parties to the agreement, praying, that a lease might be made of the liberties of [466] way-leave and watercourse, so agreed to be demised; and that such restraints, covenants, and provisos, as the Court should think proper and reasonable, might be inserted in such lease; and that the liberties so to be demised, might be confined to such collieries, as the lessees named in the said agreement had at the time of entering into the same.

To this bill the respondents put in their answers, submitting to a specific execution of the agreement; but insisting, that the liberties therein mentioned were meant and intended by the said William Davidson, to extend to all the collieries which the lessees should be possessed of at any time during the term thereby agreed to be granted.

The cause being at issue, witnesses were examined on both sides; and on the 9th of December 1773, the cause was heard before the Lord Chancellor Bathurst, when his Lordship declared, that according to the true construction of the agreement, the lessees right of way-leave and watercourse extended to all the coal mines and collieries in their possession at that time, or which they should afterwards be possessed of during the term; and therefore referred it to a Master, to approve of a lease pursuant to the said agreement, with covenants usual in such leases.

Soon after pronouncing this decree, the respondents preferred a petition to the Lord Chancellor, stating, that they had several proofs taken in the cause, and several exhibits to be read, which they found by the Register's minutes were not entered as read; and that there was no direction given for entering the proofs and exhibits as read, which they were advised was very material to be done. That they also found by the minutes, that the Master was to approve of a lease pursuant to the agreement, with covenants usual in such leases; but they apprehended, that the direction should have been, that the Master do approve of a lease pursuant to the said agreement, without any special directions touching the covenants to be contained in such lease they therefore prayed his Lordship, to rectify the minutes in these particulars.

On the 21st of January 1774, this petition came on to be heard, when his Lordship was pleased to order, that the evidence on both sides should be entered as read; and that the minutes should be rectified, according to the prayer of the petition.

From so much of this order, as directed the evidence to be entered as read, the present appeal was brought; and on behalf of the appellants it was argued (E. Thurlow, J. Dunning, Ll. Kenyon), that the decree on the hearing of the cause, was the judgment of the Court on the construction of the agreement; and that the agreement itself, with such part of the evidence as had been read by the plaintiff, was all that was then before the Court. That no evidence was at that time offered on