West Briton and Cornwall Advertiser. Friday 9th May, 1851. Part Two STANNARIES' COURT - WHITFORD v. SIMMONS - Mineral Court Mine - The Vice-Warden said this was an application by the plaintiff for an injunction to restrain the removal of tin ores from Mineral Court mine. Generally such applications had been made by mining creditors, upon a reasonable fear that the removal of property on which they had given credit might lessen their security, and the grounds for granting or refusing such applications being well know, he had not generally done more than say whether the injunction should be granted or not. In this case, however, the application was not so much that of a mining creditor, as that of an unpaid vendor who has parted with the property sold. Now an unpaid vendor who has parted with the property sold, might be compared, as regarded the present question, with an equitable mortgagee, who may restrain the person not paying him for lowering the value of his security; he may, for instance, prevent him from cutting timber (King v. Smith, 2 Hare's Reports, 239.) Hence he would not now say - for he was not required to - whether a mortgagor or non-paying vendee of a mine shall be restrained from mining. But he would say that Mr. Whitford, having let Mr. WEBB and others into possession of this mine, on an agreement that they shall raise and sell ores, and from the proceeds pay a stipulative part of Mr. Whitford until the GBP200 were paid, and that then Mr. Whitford shall assign his interest in the mine to Mr. Webb, - under those circumstances, he would say, that Mr. Whitford cannot restrain the sale of ores merely because, according to his view, Mr. Webb has already sold ores and not paid Mr. Whitford in compliance with his agreement. The only reason why Mr. Webb has been allowed possession is that he may raise and sell ores, and Mr. Whitford is as much interested as any one in his doing so, - therefore he cannot restrain what he has emphatically allowed. What might be Mr. Whitford remedy need not now be a subject of consideration. His Honor further observed that these were his reasons for not granting the injunction, but it seemed from the affidavit that there was not much more to be paid. Mr. Hockin intimated that the matter had been settled. POPHAM v. COATES and OTHERS, - Mr. BENNALLACK, for the defendants, obtained a rule nisi for dissolving the injunction granted in this case at the last sittings to restrain defendants from removing ore from Pengelly mine, in the parish of Crowan. JOHNS v. RICKARD and ANOTHER - A creditor's petition against a purser for payment for goods supplied amounting to GBP18. 13s. 2d. Mr. CHILCOTT obtained a decree pro confesso, for payment to be made in not less than five clear days after service. TILLY v. MACKINTOSH - West United Hills Mine. - This was a purser's petition for non-payment of debt and costs amounting to GBP85. Defendant resides out of the Stannaries. Mr. HOCKIN obtained a decree pro confesso for payment in not less than fifteen days after service. In the case of the same purser against DICKENSON, Mr. Hockin obtained a similar decree for payment of GBP55, to be made in not less than ten days after service. In the case of the same purser, versus SMALL, also for a debt of GBP55, a decree was granted for payment in ten days. Also in TILLY v. TRUSCOTT, for a debt of GBP27. 10s., Mr. Hockin obtained a decree for payment in not less than seven clear days after service. BICE v. TIPPET and OTHERS. - Tolcarne Mine. - Mr. ROBERTS obtained a rule nisi to dismiss the petition against defendants PRYOR and JOSEPH REYNOLDS for want of prosecution. MONDAY MAY 5. - On this day the Court disposed of the small debt cases (under GBP50), of which twenty were entered for trial, with fifteen motions and twenty-eight equity entries. CHRISTOPHER v. NICHOLLS - In this action Mr. ARUNDELL ROGERS, of Penzance, appeared for plaintiff, and Mr. STOKES for defendant. The suit was brought for the recovery of GBP30, claimed to be due for defendant on his written undertaking to make good that amount to plaintiff on plaintiff's advancing the same to Messrs. JAMES and THOMAS OSBORNE, who were in difficulties at the time, an execution having been levied on the goods of one of them at the suit of a Mr. WILLIAMS. The guarantee was in this words:- "Dear Sir, Zennor Churchtown, Jan. 20, 1850. I recommend you to let Thomas and James Osborne have the use of your case, as they say they will return it again in about two months time. And if you are afraid of being defrauded by them of the same, I will see the same restored to you again. Yours, &c., HENRY NICHOLLS." "To Mr. NICHOLAS CHRISTOPHER". It appeared by the evidence for the plaintiff, that plaintiff was a brother-in-law of the Osbornes, having married their sister, and that defendant was not a relative, but a friend of the Osbornes; that defendant was first applied to by the Osbornes for a loan, but not having the money to advance them, he wrote plaintiff as above; and that plaintiff did, after receipt of the letter, deliver to one of the Osbornes a note-of-hand on which a person called DAVEY owed plaintiff GBP30, for the Osbornes to obtain payment for Davey and apply the money to their benefit. On behalf of plaintiff it was contended by Mr. Rogers, that plaintiff parted with the note of hand to the Osbornes on the express guarantee of defendant; but one of plaintiff's witnesses, Thomas Osborne, admitted on cross-examination that plaintiff, when he received the above letter from defendant, said it was not on a stamp and worth nothing and that on his so saying, plaintiff's wife (the sister of the Osbornes) pressed plaintiff to let the Osbornes have the note-of-hand. The fact of the note being paid by Davey, and that the cash obtained on it was applied to the account of the Osbornes, was proved by Mr. ROSCORLA, of Penzance, the attorney of the persons by whom the execution has been levied on the goods of one of the Osbornes. So that the only question remaining for the jury was the effect of the defendant's letter, and whether plaintiff had parted with the note-of-hand relying on the guarantee contained in that letter, or had rejected the guarantee, and accommodated the Osbornes at the instance of plaintiff's wife. For the defence, Mr. Stokes submitted that the guarantee had been rejected by plaintiff, and actually withdrawn by defendant, before plaintiff handed the note-of-hand to the Osbornes, and that the note-of-hand was delivered to them only at the urgent entreaty of plaintiff's wife; in support of which view of the case, a respectable farmer of Zennor, called MICHELL, was called, who proved that plaintiff told him he had seen defendant after the letter was written, and that defendant had gone from his word, and the plaintiff would not lend the Osbornes money, but that he would do what he could for them, and would attend the sale of the goods seized in execution, on their behalf. James Osborne was also called for the defence, to prove that on receiving defendant's letter, plaintiff said it was worth nothing, not being stamped, and that afterwards plaintiff was induced to give Thomas Osborne the note-of-hand for GBP30 at the entreaty of plaintiff's wife. His Honor summed up the case and the jury returned a verdict for defendant. Wednesday, May 7 - LYLE v. HUNT - Carvannal Mine. This was a purser's petition against an adventurer for costs in arrear, amounting to GBP25. Mr. T. ROGERS produced affidavits of service of decree pro confesso for payment, and was granted a rule nisi for sale of share. ROSCORLA v. HOBSON - Wheal Enys. - A purser's petition for costs. Mr. STOKES had obtained a decree pro confesso for payment of GBP59. 1s. 5d., and on affidavits of service and non-payment moved for a rule nisi for sale of shares. Rule nisi granted. PENGELLY MINE - POPHAM v. COATES and OTHERS - This was a trial in equity, Mr. T. ROGERS, Mr. STOKES, and Mr. ROBERTS for the plaintiff; Mr. BENNALLACK and Mr. PLOMER for the defendants. The facts contained in the petition were stated by Mr. Roberts. The petition was filed by Mr. CHRISTOPHER WALLIS POPHAM, against Mr. WILLIAM COATS and two others, and its object was to restrain the defendants from working a mine called Pengelly, in the parish of Crowan. The plaintiff's case will be understood from the following statement by Mr. Rogers. Plaintiff is the proprietor to some extent of lands in the parishes of Sithney, Breage, and Crowan, and resides in Sithney. One of the defendants, Mr. Nicholls, also lives in Sithney; the other two defendants, Mr. COATES and Mr. GUSTARD, reside in London, and were accountants, or something of that kind. Plaintiff was the owner of the under ground profits of Pengelly estate, on which was situate Pengelly mine. In 1848, a Mr. ROBINSON applied for and obtained a license of plaintiff to work the mine for six months. Shortly before the expiration of that period, defendant Nicholls applied for a license to work the mine. The plaintiff wrote him a letter stating that Mr. Robinson's license had not expired, and that he might apply for the sett, - if he did not, plaintiff was very willing to give him a license. The first introduction of defendant Nicholls to the mines was in consequence of his stating to plaintiff that he had no means of support, on which plaintiff allowed him to go on the mine and work for a fortnight, at a tribute pitch of 18s. 6d. in the pound. At the expiration of that time he asked for a three weeks' license on the 21st of May, 1849, which the plaintiff granted till the 1st of June, 1849. During this period Nicholls was endeavouring to get adventurers to work the sett, and about the time of the expiration of his license on the 1st of June, 1849, he applied to plaintiff for a license on behalf of defendant Coates and Captain EDWARD THOMAS, (since deceased) and Nicholls was to be employed on the mine as agent. Plaintiff told defendant that if they would effectually work the mine, he had no objection to grant six months' license, which, however, was not granted until the 2nd of July, 1849. Just before granting that license, Mr. Popham wrote to Captain Edward Thomas, explaining the terms on which they should have the license, - that the mine was to be worked in an effectual, proper, and miner-like manner. That license of the 2nd of 2nd of July expired on the 2nd of January, 1850, from which time to the 26th of April the parties worked without any license, but there were negotiations proceeding during that period. On the 26th of April, another license to work for six months was granted, which expired on the 26th of October, 1850. One condition of that license of the 26th of April, was that nine men were to be continuously employed during the six months. It was also understood between the parties that a sett was to be granted at the end of the six months, but on two conditions, first, that the terms of the license were fulfilled, and secondly, that such a list of adventures was furnished as the plaintiff might approve of. He (Mr. Rogers) should show that the license of the 26th of April was granted under previous arrangements and conditions, and that before plaintiff consented to grant if, defendants Coates and Nicholls agreed with the plaintiff's toller (the mine having been worked before), that they would forthwith erect an engine for the purpose of exploring and working the mine. But instead of this, no engine had been erected to the present moment; and with regard to the employment of nine men, as named in the license, that in the view of every miner, Mr. Roberts contended, would mean nine men to be continuously employed in tutwork for the purpose of exploring. Defendants alleged in their answer that they had employed nine men, but they did not say they had employed that number in tutwork. He had no doubt that nine men had been employed there, perhaps the greater part of the time, or sometimes twenty men, but not in such a way as to satisfy the terms of the license. The workings of the mine had been carried on for the last two years, yet the work that had been done in exploring might all have been accomplished by nine men in nine months. The fact was that instead of erecting an engine to carry on operations below the adit level, and employing tutwork men, they had set tribute pitches and taken away the backs of the lodes above the adit, selling the tin sometimes fortnightly or weekly, and by taking away the backs had made the mine all the worse for any future company of adventurers. Mr. Rogers further said he should prove by plaintiff's toller, Captain SAMUEL ADAMS, that complaints had been repeatedly made to defendants Nicholls and Coates, that they were not effectually working the mine. He further went on to state that in October, 1850, when defendants' license expired, there were various interviews between defendants Coates and Nicholls and plaintiff and Captain Adams. At the first interview, defendants asked plaintiff to give them a further license for twelve months; but Mr. Popham told them that no license or sett would be granted unless a sum of money was deposited with him as a guarantee for the effectual working of the mine. Plaintiff afterwards saw his toller, Adams, and gave him directions to make the best arrangement he could with Mr. Coates as to the amount to be deposited. The toller then made an arrangement with Coates to grant a further license for twelve months on a deposit of GBP50; but Mr. Popham, in ignorance of that arrangement, wrote the letter of the 17th of October, (set out in the petition), and which mentioned GBP100 as the sum to be deposited. That course, the deposit of a sum of money as a guarantee for effectual working, Mr. Rogers said was what was commonly asked for in this county by landed proprietors when they are not perfectly satisfied with the responsibility of the parties who seek to work their land, the deposit being forfeited to the proprietor in case the agreement is not carried out. Mr. Rogers further read a letter from WILLIAM DAVEY, (pay-clerk of the mine) in reference to this agreement for the deposit of GBP50; it being a part of the agreement between the toller and Coates, that on the GBP50 being sent down, defendants should have the further license of Pengelly mine for twelve months, and also a little mine called Wheal Harriet, and the toller furnished Davey with the grant of Wheal Harriet on the promise that the GBP50 should be forthcoming. Mr. Rogers next referred to the list of adventurers which was handed by defendant Coates to plaintiff just before the expiration of the license in October last. That list, he said was totally unsatisfactory to plaintiff. He read the seven names of the parties, to whom were allotted 355 shares, whilst the whole number, according to a prospectus issued, was to be 1,248 shares. Twenty shares were appropriated to defendant Nicholls, and the other shareholders were parties resident in London, and under the last name which had shares opposite to it, were the names of two ladies with no shares mentioned. Though the shareholders were all dubbed esquires in the list, it was not such a list as plaintiff could approve of, and having only 355 shares allotted out of 1,248. He then went on to read from a printed prospectus of the concern, that the 1248 shares were to be allotted at GBP2 each, and in the handwriting of defendant Coates, at the bottom of the printed prospectus, a committee of management was named, all resident in London, and then followed a "very cheering" report of the mine by defendant Nicholls, setting out the state of the workings, the tin they had sold and expected to sell, &c. Defendants stated in their answer that they had expended GBP500 in the mine, but he (Mr. Rogers) would ask whether that corresponded with the report of Nicholls, which stated that thousands of pounds worth of ore could be raised from the mine, without incurring the cost of an engine. He should prove that no such sum as GBP500 had been expended; the only machinery defendants had placed on the mine was a horse whim, which was brought for GBP3 or GBP3. 10s., and the only erections were a counting-house and smiths' shop, and miners would be amused when told that both those erections were made at a cost of GBP8. He should also say that both those erections had been made since the expiration of the license, since which time notwithstanding the denial of plaintiff, they had continued to carry on their operations; yet the whole cost of their workings, &c., could not have cost more that GBP250 instead of GBP500 as stated by defendants. He should also show that more than GBP300 worth of ores had been sold, and that there was now about GBP100 worth on the mine, a considerable quantity having been raised since the injunction was granted by the Vice-Warden's Court to restrain the removal of ores. Mr. Rogers submitted that the spirit and intention of the license granted to defendants for six months, was not that they should go there to explore entirely unexplored ground, but to extend a mine which had been to some extent worked before. To show this, he read a letter from plaintiff to defendant Coats, on the 18th of March, 1850. Defendants however, had not acted according to the spirit and intention, or the terms of the license. They had not employed nine men continuously as had been agreed on, and which condition in a license he should call evidence to show meant nine men to be employed in tut-work; for according to good mining, whilst the backs of the lodes were stopped on tribute, tutwork men ought to have been employed in driving the end at the same time. The conditions of the license had therefore been broken, by the non-employment of tutwork men in excavating and exploring, and by the non-production of a satisfactory list of adventurers. If indeed, defendants had ever a right to the sett, they had abandoned that right by entering on a subsequent agreement, which agreement also they had failed to fulfil. The course they had been pursuing was to the damage of plaintiff's property, who had lost in dues by the mine not being effectually worked, whilst also by the course defendants had taken, the sett had been rendered less valuable for another company. He enlarged on these points to some extent, and trusted that the court would grant an injunction to restrain the defendants from working, and also order than an account should be rendered by defendants of the ores they had raised, in accordance with the prayer of the petition. After some suggestions by the Vice Warden with the view of having irrelevant matters discarded from the evidence, Mr. Rogers called in support of the plaintiff's case, Captain SAMUEL ADAMS, toller for plaintiff Captain M. W. MARTIN, toller for Canon ROGERS; Captain RICHARD BLIGHT, of Wheal Vor; W. E. CUDLIP, merchant; and R. GOLDSWORTHY, miner. The Court then rose. Thursday, May 8. - POPHAM v. COATES and OTHERS - The case was proceeded with this morning. Mr. Stokes on the part of plaintiff, summed up the evidence; after which Mr. Plomer addressed the Court in behalf of defendants, and then proceeded to call witnesses. We shall give the remaining part of the trial next week.