ÆäÀÌÁö À̹ÌÁö
PDF
ePub

"found" meant "ascertained to lie and be." It was necessary to ascertain this quantity, to fix the amount of purchase money, which could be done without getting the coal. The defendant was the proper person to find the quantity, and to secure this the covenant to pay 401. a year was inserted. The right of the plaintiff to sue for this sum was absolute and without condition, and it was for the defendant to show that he had ascertained the quantity of coal, and had fully paid the price (ƒ).

Questions of due performance are, of course, properly for the consideration of a jury; but if there be any fraudulent delay on the part of the lessee, the Court of Chancery will interfere and order him to pay the rent which would have accrued, if the mine had been properly worked.

A rent of 600l. was reserved in a lease of coal mines, the first quarter's payment of which was to be made at the next feast after the lessee should have worked one thousand stacks of coal. There was a covenant by the lessor that he would dig the thousand stacks of coal without delay, and in a reasonable time, and that he would dig the pits in a workmanlike manner, and level the pits with the gin pit, viz., the pit where the engine is to carry away the water. There was a mutual covenant that the lessee might, on giving six months' notice, determine the lease, on payment of all the rents due and performance of the covenants. The lessor entered, and afterwards gave six months' notice, by which he insisted that the lease was determined at Christmas, 1723. The lessor filed a bill in Chancery, alleging that the defendant, after having entered, had worked before the first quarter day the thousand stacks of coals, except a small quantity, and had employed his workmen in other works, telling some of them that he was not such a fool as to pay a quarter's rent for a few days' work, and insisted that the first quarter's rent ought to have been paid at Lady-day, 1721. The bill prayed a specific (f) Jowett v. Spencer, 1 Exch. 647; 15 L. J., N. S., Exch., 347; 17 L. J., N. S., Exch., 367.

performance of the covenants, and that the lease might continue for twenty-one years, because the power to determine by notice was conditional, viz., on paying the rent and performing the covenants, which he had not done; for the pits were not levelled with the gin pit, and were overflowed with water, and rendered of no service to the lessor. It was contended for the lessee, first, that the bill ought to be dismissed, because the plaintiff, if injured, might have his remedy at law; and, secondly, that it was a question for the consideration of a jury whether the lessee had performed his covenants. Lord Chancellor King agreed with the counsel on the second point; for if the defendant had not performed his covenants, he could not then determine the lease, and if that was still subsisting, which was a fact for a jury to try, an action laid for the rent. But as to the first point, though the plaintiff might indeed have remedy by an action of covenant, upon the collateral covenant to dig the coal without delay, yet there was fraud in preventing the digging before the quarter day, in order that the rent might not commence so soon, and this fraud required the interposition of the Court. It was, therefore, decreed that the defendant should pay the first quarter's rent due at Lady-day, 1721, and account and pay the rent to Christmas, 1723, till which time the defendant allowed the lease to be subsisting, but that the bill should be dismissed as to the second point, whether the lease was determined The costs were to depend on the issue of the

or not.

suit (g).

In a lease of mines and smelting mills in a waste there was the recital of an agreement that the lessees should take down a smelting mill, and erect a mill of larger dimensions, with several other buildings upon another piece of ground in the same waste, which were thenceforth to become the pro

(g) Greene v. Sparrow, Reg. Lib. A., 1725, fols. 120, 124, cited 3 Swanst.

perty of the lessor and the two other proprietors of the mines of the waste. There was a covenant on the part of the lessees to keep and deliver up at the end of the term in good repair the new mill to be erected. The lessor was not entitled to the general property in the waste, but he had power to erect buildings and smelting mills. It was held, that, though the covenant did not expressly extend to the erection of the new mill, there was an implied covenant to fulfil the terms of the agreement. It was also decided, that the covenant ran with the land, that is, the mines demised, so as to be available to the assignee of the reversion. The covenant was considered to tend to the support and maintenance of the subject of demise (h).

In another case, the owners of several distinct iron works joined with other persons in forming a railway, and severally engaged that they and their assigns would take all the limestone used in their works from a certain quarry, and carry it, and the ironstone from their mines to their furnaces along the railway, on payment of a certain tonnage. The partnership deed of the railway recited that the strangers joined in the scheme in consideration of those benefits. The owners of one of the iron works sold them to a purchaser with notice of the covenant. It was held, that he was not bound by the covenant, on the ground that the covenant was entered into by mere strangers, that there was a want of privity, and that parties could not be allowed to invent new modes for the enjoyment of property to be transmitted to remote persons, and impressed with peculiar conditions. It was creating a new species of tenure (i). The latter reasons for this decision have not been acquiesced in, and they seem to be quite open to dispute. The case must rest upon the want of privity (k).

In an agreement for a lease of land for a railway, it was covenanted that the lessees and their assigns should carry

(h) Sampson v. Easterby, 9 Barn. & C. 505; 1 Cromp. & Jer. 105.

(i) Keppell v. Bailey, 2 Myl. &

Keen, 517.

(k) 2 Sug. Vend. and Purch. 502.

all the coals from a certain colliery, and all the coal from any other mines to be worked by them in a certain township, at a rate or rent of 2d. per ton. Subsequent assignees of the railway and the mines refused to pay the rent for any other coal than that from the specified colliery, and used another railway for the other coal. It was held, that the covenant ran with the land, and that the assignees were bound to pay all the rates (1).

It was stipulated in a lease of land and of quarries, that the lessee should not commit waste by cutting trees, which were also excepted. It was held, that the lessee was justified in cutting down trees which were interfered with by the proper working of the quarries (m).

A lease of coal and iron mines had been made by several tenants in common, both legal and equitable. The lessee entered into usual covenants with all the lessors, and each and every of them, their and each and every of their heirs, executors, administrators and assigns. The plaintiff, who had acquired a legal title to a moiety of the mines, brought an action for breach of covenant. It was held, that the covenants were all of a joint nature, as affecting the quality of the subject of demise, or the mode of enjoying it, and that all the covenantees in their lives, and after the death of any of them, the survivors were the proper plaintiffs. It was stated to be unnecessary to inquire, whether one of several tenants in common, lessors, could sue on a covenant with all to repair, as to which there was no decisive authority either way. It was also admitted, that, if the language of a covenant was capable of being so construed, it was to be taken to be joint or several, according to the interests of the parties to it; but that, when the interest is joint, the same covenant cannot be made joint and several by any words, however strong (n).

(1) Hemmingway v. Fernandez, 12 L. J., N. S., C. C., 130.

(m) Doe d. Rogers v. Price, 8 Com. B. 894; 19 L. J., N. S., C. P., 121.

(n) Bradburne v. Botfield, 14 M. & W. 559; 14 L. J., N. S., Exch., 330.

It is not necessary, when there is a joint and several covenant at the beginning of a long course of covenants, with proper introductory words, that the joint and several liability should be expressed with respect to every distinct matter (o).

In a case, where the covenantees, the purchasers of certain collieries, were not copartners, but only contemplated partnership, and covenants were entered into severally by the vendors, it was held, that the subject-matter of the covenants was a several interest; for each purchaser had a separate right in respect of his share (p).

It was covenanted in very special agreement under seal, dated the 21st of July, 1849, that the defendants should grant a lease for twelve years, from the 25th of March last past, of a plot of land on which the plaintiff had erected a factory for making patent fuel; that all the coals used by the plaintiff during the term for the purpose of his manufacture should be purchased from the defendants, if they could sufficiently supply him, or to such extent as they could supply, at certain rates, and of suitable quality for making steam fuel; that the defendants should not be compelled to supply more than 500 tons per week, and, if from some substantial cause they should be unable to supply that quantity, they should give to the plaintiff six months' notice of their inability, and the plaintiff should be at liberty to get his supply or the excess elsewhere. There were several other covenants, as, that the plaintiff should not use the land for any other purpose but for making patent fuel, and that the agreement, determinable as before mentioned, should continue for the term of twelve years from the date. It was held, that the granting of the lease was not a condition precedent to supplying the coal, and that the two covenants were independent; that the term of twelve years in the former part of the agreement did not

(0) Duke of Northumberland v. Errington, 5 T. R. 522.

(p) Mills v. Ladbroke, 13 L. J.,

N. S., C. P., 122. See Sorsbie v. Park, Ibid., Exch., 9; 12 M. & W. 146.

« ÀÌÀü°è¼Ó »