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SHELFORD ON THE LAW OF RAILWAYS. - Second Edition. MEDICAL, LEGAL, and GENERAL MUTUAL LIFE
This day is published, in One thick Vol. 12mo., price 21s. boards, 11 ASSURANCE SOCIETY, No. 126, Strand. (Registered Provie THE LAW of RAILWAYS; including the THREE GE- sionally). Subscription Capital 50,000!., in 2000 Shares of 251. each. 1 NERAL CONSOLIDATION ACTS, 1845, and the other General First Call 51. per Share Acts for regulating Railways in England and Ireland, with copious Notes
TRUSTEES. of decided Cases; also the PROCEEDINGS in PARLIAMENT respect
James Copland, M.D., F.R.S. ing RAILWAY BILLS, with Forms, &c. Second Edition, considerably
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AUDITORS *** CHARLES DAVIDSON, Esq., of the Middle Temple, Barrister at Law, r extinguishing attendant Terms. By
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1 STATE, practically arranged and digested in all its branches; including the very latest decisions of the Courts. By GEORGE CRABB,
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HIM. LONDON, FEBRUARY 28, 1846. | incur. The second, which is, in truth, an inevitable
consequence of the first, consists in the practice of com- . RUMOURS are current that changes of immense ex- pelling the party charged with a wrong, or a liability, ent and importance are contemplated with reference to to lay open the recesses of his conscience, and divulge roceedings in Chancery; changes involving an entire all that he knows, or believes, or thinks, in relation to
Totion in the system of the Masters' offices, and a the subject-matter of inquiry. To meet the exigences translation to those offices from the superior courts, of of these two features of equity jurisdiction, all the mahe entire department of administratory suits.
chinery of Chancery proceedings has been calculated, The system adopted in proceedings in Chancery is and is thoroughly well-adapted: not only is it well Imirable, taken with reference to the subjects for adapted for the purpose, but, perhaps, it may be said, hich it was originally destined. But, in the course that no very different system could be found at all practime, the jurisdiction of Chancery has, from the ex- tically effective, and, at the same time, bearable, conat and flexibility of its powers, and the absence of sistently with the ideas and habits of men living under
other jurisdiction possessing sufficient attributes, a free government. But when the same system, with an extended to subjects for which it was not origin- all its guards, and checks, and delays, intended to soften
destined, and for which many of the peculiarities and make tolerable the pressure of its inquisitorial its procedure are totally unnecessary. At the same character, comes to be applied to cases where there is e, the class of interests, in reference to which the no fraud, or suspicion of fraud, -no concealment, or isdiction of Chancery is the only one that the in- thought of concealment,--no necessity for any exercise tutions of this country provide for the administration of inquisitorial powers on the one hand, or of protective. justice, has become so extended, that a large portion delays on the other;-wlien, in such cases, the long the business of Chancery now consists of suits of a bill, with its charges and inevitable interrogatories, aracter requiring, it is true, to be dealt with ac- and the minute answer, with its equally inevitable ding to the principles of equity, but not requiring statements and traverses, almost unavoidably repeating. all the peculiar machinery of equity procedure. And each other under the fear of a possible exception, form subjects for suits of this class, an infinite number is the foundation of a suit; and the formal state of facts, without the protection of any judicial adjudication, and affidavits, and written reports, together with long use equity, the only jurisdiction at all adapted to written petitions to the court upon every trifling matI with them, is inaccessible by reason of its peculiar ter, and references to the Master to inform the court cedure.
what it ought to do, form the bulky sequel; then it is The principal peculiarities of equity are two, one of impossible not to see that a most unnecessarily cụmbrous inciple, the other of procedure. The first consists, and tedious mode of proceeding is applied to objects, aking, of course, in a very general manner, in this: for which it was never intended, and for w Trh it is all at equity does not confine itself to the consideration adapted. the absolute legal rights of parties, but treats those Where parties differ about the existence hits as held for, or controlled by, the liabilities which, contract; where persons filling, or be ---fill conscience, the parties have intended mutually to fiduciary character, assert their absolute ** YOL. X,
to give information which can only be obtained from THE DOCTRINE OF EQUITY AS TO PARTIAL themselves; where transactions have taken place be PERFORMANCE OF AN AGREEMENT. tween men, in which fraud is imputed by the one and denied by the other party;-in these, and the great variety
A very recent decision (Rolfe v. Rolfe, ante, p. 61) of other instances in which not only are parties hostile appears to establish an important distinction in referto each other, but much that affects the transaction ence to the doctrine of those cases, in which it has been must remain undiscovered, unless the party charged held, that equity will not decree an agreement to be can be put to discharge his conscience by answering a specifically performed, unless it can execute the whole keen inquiry; it is intelligible that a minute string of
of the agreement, and that, when it cannot execute the
whole agreement, it will not restrain by injunction breach allegations, followed by an equally minute and inquisi- |
of a negative covenant calculated to protect the positive torial string of interrogatories should be necessary; and branch of the agreement. (Kemble v. Kean, 6 Sim. 333; that all the consequential arrangements of well-con- | Kimberley v.Jennings, Id. 340; Hills v.Crolí,9 Jur.645). sidered written evidence, and inquiries addressed to the The qualification engrafted by Rolfe v. Rolfe, upon the Masters, and guards against surprise, by the interposi- |
ise by the internosis doctrine of these cases, or, to speak more accurately, the
distinction shewn by that case to be not inconsistent with tion of the court, and the advice and advocacy of coun- theme is this
| them, is this: that, if the agreement is not strictly one sel at every step, should be not only beneficial, but entire agreement, but the quasi agreement, constituted indispensable, to prevent oppression. But it is not so by the covenant not to do some particular thing, can be intelligible how, in a suit in which nothing is required, considered as a distinct and separate agreement, and if for instance but to ascertain who are the person's con: the bill does not pray specific performance of the com
pound agreement, but only an injunction to restrain the stituting a particular class described by a testator, or
breach of the negative covenant, then equity may interwho are the testator's next of kin, and then the decision
fere by injunction to enforce that distinct part of the of the court upon the construction of the will-any agreement which is protected by a covenant to abstain useful purpose is answered by a bill, with all the parts from doing certain things, although it may see that it of a hostile bill; and several answers; and a hearing, has no power to enforce the specific performance of the to do nothing but direct the Master to make inquiries: other part of the agreement, consisting of a positive
agreement to do something. and then inquiries conducted with all the forms of hos
1 In Kimberley v. Jennings (6 Sim. 340) there were tile proceedings; and, lastly, a hearing on further di. I certain stipulations, intended to be of a positive characrections; the result of the whole being an amount of ter, but too vaguely expressed to be capable of being delay and expense, which effectually prevent the juris- specifically executed ; and a certain other stipulation in diction being of any use whatever, where the property the nature of a covenant not to do particular acts. The in question is not, at the very least, of 5001. in value.
court was of opinion, that the two agreements were Suits of this class, and of the purely administratory
blended and dependant upon each other; and, there
fore, although the bill did not in that case pray specific class, are, it is said, to be entirely withdrawn from the performance, but only, as in Rolfe v. Rolfe, an injuncactive interference of the court, and are to be wholly tion to restrain a breach of the covenant, it was held, disposed of, under a simple order of reference, by the that such a bill could not be sustained, because, among Masters of the Court of Chancery, whose courts are, for other reasons, it was not such an agreement as the
court could perform in the whole, and, therefore, it that purpose, to be greatly altered in constitution, and
could not perform any part of it. to be open to the public. The proposed plans will, In Kemble v. Kean 76 Sim. 333) the court also apdoubtless, before long, be brought in detail before Par-pears to have considered the negative provision of the liament, and till then we shall content ourselves with compound agreement, as inseparable from, and a mere this brief notice to our equity readers, of the revolutions auxiliary to, the positive provision. In that case the that they may expect. It cannot be doubted, that al-Din prayed sp;
bill prayed specific performance of the whole agree
ment, and an injunction in the meantime; so that it terations in the practice in equity in this direction, if l is
is, on both points, distinguishable from Rolfe v. Rolfe. made with even moderate prudence, will be very bene- | 'In the very recent case of Hills v. Croll (9 Jur. 645) ficial to the public; and, while we doubt as little that the terms of the agreement were expressed in a rather the great body of the Profession would be ready, for complicated way; but, in substance, it came to this: such an object, to make sacrifices, if need be, we do that Hills agreed to supply Croll with acids, and Croll not, at the same time, see any reason to anticipate that agreed to purchase from Hills and from no other person. & change, simplifying and reducing the expense of pro- The bill prayed a specific performance of the agreeceedings in administratory and amicable suits, would ment, and an injunction in the meantime to restrain produce any permanently injurious effect upon the Croll from purchasing acids from any one but the status of the Profession.
plaintiff. Lord Lyndhurst said, the court had no power to compel Hills to manufacture acids; and, therefore, as
the agreement could not in its entirety be performed, Imperial Parliament.
the court would not compel a specific performance by
injunction of any part. HOUSE OF COMMONS.
Nothing fell from the Lord Chancellor, in Hills v. Wednesday, Feb. 25.
Croll, to shew that he considered the two branches of Mr. Duncombe moved the second reading of a bill for cor
the agreement inseparable, or that he attached any imrecting an error in the Friendly Societies Act. The object of
portance to the question, whether they were or were the bill is to obviate the effect of that construction of the act, under which it has been held to be confined to societies for mu
not separate. And it may be thought, that, in fact, tual relief in sickness, &c.; and it proposes to insert, after the
the two branches of the agreement were as separable as words in the present act, “ for any other purpose not illegal,"
were those of the agreement in Rolfe v. Rolfe; for an the words. " whether of the same description as hereinbefore agreement between A. and B., that A. shall purchase mentioned, or otherwise."
certain things of B., unless it involves in itself an The bill was read a second time, and ordered to be com- agreement that B. shall sell them to A., (Pordage v. mitted on Wednesday next.
| Cole, 1 Saund: 319 b), does not seem at all necessarily de
pendant upon any further covenant in the instrument, the positive one was meant to enforce some act, and the that B. shall sell to A. It might be the intention of negative one to prevent the doing of certain other acts, the agreement that A. should undertake, by a distinct inconsistent(of their own merits, and quite irrespectively covenant, to purchase of B., if he purchased at all, of the doing or not doing of the first act) with the views whether B. was bound to sell, or not. However, this of the parties. It will, we apprehend, be more frequestion does not seem to have been in any way pre- quently found practicable to use the precaution with sented to, or considered by, the court, in Hills v. Croll. reference to future instruments, than to succeed in the But the bill prayed specific performance of the whole argument with reference to existing ones. agreement, and in that it differs from Rolfe v. Rolfe.
In Hooper v. Brodrick, (11 Sim. 47), which was cited in Rolfe v. Rolfe, the point did not arise. That was not
ON DESCENT AMONGST COPARCENERS. a case in which there was a positive covenant to do something, protected by a negative covenant that the covenantor should not do acts inconsistent with the The attention of the writer of these remarks has been performance of the positive agreement; but a case in very recently drawn to a point in the law of descent which there was merely a positive covenant by the as- amongst coparceners, on which, in his opinion, an ersignee of premises used as an inn, that he would use roneous doctrine has been propagated. and keep open the premises as an inn. There was, it! The point in question is as follows:-Suppose a man is true, a negative covenant, that he should not do any to be the purchaser of freehold land, and to die seised of act whereby a license might be forfeited or refused; it intestate, leaving two daughters, (say Susanna and but that, it is obvious, was not a covenant intended to Catherine), but no sons. It is clear that the land will enforce the actual performance of the covenant to use then descend to the two daughters, Susanna and Cathethe house as an inn, but only to enforce his taking rine, in equal shares as coparcencrs. Let us now supcare that it should not become impossible for him to pose that the daughter Catherine dies intestate and use the house according to the covenant; and that was without having disposed of her moiety in her lifetime, the point upon which the judgment turned. The court leaving issue one son. Under these circumstances, held, that it could not enjoin the defendant from not (supposing the decease of Catherine to have taken place keeping the house open as an inn, which would have on or after the 1st January, 1834), the question arises, been ordering him to keep it open as an inn; but held, to whom shall the inheritance descend? The act to that it could restrain him from doing acts which would amend the law of inheritance enacts, “ that in every make it impossible for him to perform his positive co- case descent shall be traced from the purchaser.” In Fenant.
this case Catherine is clearly not the purchaser, but her It certainly is difficult to avoid the impression, that, father; and the descent of Catherine's moiety is accordin Rolfe v. Rolfe, the court was struggling to find some ingly to be traced from him. Who, then, as to this distinction, to enable it to escape from the doctrine of moiety, is his heir? Supposing that, instead of the the preceding cases. For the agreement by the plain- moiety in question, some other land were, after Cathetiffs to employ the defendant as a cutter, which was rine's decease, to be given to the heir of her father, such treated by the court as a separate agreement, was ex- heir would clearly be Susanna, the surviving daughter, pressed to be in pursuance and further performance of as to one moiety of the land, and the son of Catherine the said agreement, and in consideration of the premises; I as to the other moiety. It has been argued, then, that and, on looking back to the commencement of the in- the moiety which belonged to Catherine, by descent strument, we find that the agreement was, that, in consi- from her father, must, on her decease, descend to the deration of certain pecuniary equivalents, the plaintiff's heir of her father, in the same manner as other land father and his brother were to assign their shares in the would have done had she been dead in her father's lifepartnership business to the plaintiff; and the covenant time; that is to say, that one moiety of Catherine's by the defendant not to carry on trade on his own ac- moiety will descend to her surviving sister Susanna, count, was in consideration of the premises, as well as and the other moiety of Catherine's moiety will descend the subsequent agreement by the plaintiff to employ to her son. This view of the case appears to have been him. It may be contended, therefore, that all the three first promulgated by a writer in the Law Magazine, in stipulations, viz. the stipulation for a pecuniary pay- a review of the last edition of Sir Edward Sugden's ment, the stipulation that the defendant should not Vendors and Purchasers, (23 Law Mag. 279). It was carry on business on his own account, and the stipula- afterwards sanctioned by Mr. Hayes, who states the same tion that he should be employed, formed together one doctrine in the last edition of his valuable introduction consideration of one agreement. The principle of the to conveyancing, (1 Hayes's Conv. 314). It appears decision is, however, unaffected by the question, whe- again in Mr. Sweet's edition of Messrs. Jarman and ther the agreements were or not, in fact, distinct; the Bythewood's Conveyancing, (vol. 1, p. 139), where an court having decided the case upon the assumption that argument of considerable length will be found in supthey were so, and holding, that, where the two branches of port of it; and it has been subsequently adopted by an apparently single agreement are, in substance, distinct, Mr. Joshua Williams in his Principles of the Law of and the bill does not pray specific performance of the Real Property, p. 80. With deference to those genwhole agreement, but only an injunction to restrain the tlemen, the writer contends, that, on the decease of breach of the negative agreement, the court has juris. Catherine, her moiety will not descend equally between diction to grant such an injunction, notwithstanding her surviving sister and her own son, but will descend the doctrine of Kimberley v. Jennings, Kean v. Kemble, entirely to her son and Hills v. Croll.
In order to arrive at our conclusion, it will be neThe necessary precaution to be kept in view in cessary to inquire, first, into the course of descent of an framing agreements of this sort will, therefore, in fu- estate tail, under the circumstances above described, ture, be to keep the two branches of the agreement, if according to the old law; secondly, into the course of two branches there must be, as independent as possi-descent of an estate in fee simple, according to the old ble; and the struggle, in taking existing cases out of law, supposing the circumstances as above described, the inconvenient, and, as we humbly venture to think, with this qualification, that neither Susanna nor Cathemost inequitable, doctrine of Kemble v. Kean and Kim-rine shall be considered to have obtained any actual berley v. Jennings, will be to sliew that the intention seisin of the lands. And, when these two points shall was not to make the negative covenant protect the po- have been satisfactorily ascertained, we shall then be in sitive one, which would be to connect them; but that I a better position to place a correct interpretation on the act by which the old law of inheritance has been en- half.” (Year Book, 20 Hen. 6, 14 a). Newton, theredeavoured to be amended.
fore, though wrong in supposing that a formedon was First, then, as to the course of descent of an estate necessary, thought, equally with Lord Coke, that a tail according to the old law. Let us suppose lands to moiety of the land was the share to be recovered. This have been given to the purchaser and the heirs of his appears to be the Newton whom Littleton calls (sect. body. On his decease his two daughters, Susanna and 729) “my master Sir Richard Newton, late Chief JusCatherine, are clearly the heirs of his body, and as such | tice of the Common Pleas." will accordingly have become tenants in tail each of a There is another section in Littleton, which, though moiety. Now, there is no proposition more frequently not conclusive, yet strongly tends in the same direction; asserted in the old books than this: that the descent of namely, section 255, where it is said, that, if the tenean estate tail is per formam doni to the heirs of the ments whereof two parceners make partition “be to body of the donee. On the decease of one heir of the them in fee tail, and the part of the one is better in body, the estate descends not to the heir of such heir, yearly value than the part of the other, albeit they be but to the heir of the body of the original donee per for- concluded during their lives to defeat the partition, yet, znam doni. Suppose, then, that Catherine should die, if the parcener who hath the lesser part in value hath her moiety would clearly have descended, hy the old i issue and die, the issue may disagree to the partition, law, to the heir of the body of her father, the original and enter and occupy in common the other part which donee in tail. Whom, then, under the above circum- / was allotted to her aunt, and so the other may enter stances, did the law consider to be the heir of his body and occupy in common the other part allotted to her quoad this moiety? The Tenures of Littleton, as ex sister, &c., as if no partition had been made.” Had the plained by Lord Coke's Commentary, supply us with law been, that, on the decease of one sister, her issue an answer. Littleton says, “ Also, if lands or tenements were entitled only to an undivided fourth part, it seems be given to a man in tail who hath as inuch land in fee strange that Littleton should not have stated that they simple, and hath issue two daughters, and die, and his might enter into a fourth only, and that the other sister two daughters inake partition between them, so as the might occupy the remaining three-fourths. land in fee simple is allotted to the younger daughter, In addition to these authorities, there is a modern in allowance for the lands and tenements in tail allotted case, which, when attentively considered, is a clear to the elder daughter; if, after such partition made, the authority on the same side; namely, Doe d. Gregory younger daughter alieneth her land in fee simple to and Geere v. Whichelo, (8 T. R. 211). This case, so another in fee, and hath issue a son or daughter, and far as it relates to the point in question, was as follows: dies, the issue may enter into the lands in tail, and -Richard Lemmon was tenant in tail of certain prehold and occupy them in purparty with her aunt.” | mises, and died, leaving issue by his first wife one son, (Litt., sect. 260). On this case Lord Coke makes the Richard, and a daughter, Martha, and, by his second following comment:-" The eldest coparcener hath, wife, three daughters, Anne, Elizabeth, and Grace. by the partition, and the matter subsequent, barred Richard Lemmon the son, as heir of the body of his herself of her right in the fee-simple lands, insomuch father, was clearly tenant in tail of the whole premises as when the youngest sister alieneth the fee-simple during his life. He died, however, without issue, leavlands and dieth, and her issue entereth into half the lands ing his sister Martha of the whole blood, and his entailed, yet shall not the eldest sister enter into half of three sisters of the half blood, him surviving. Martha the lands in fee simple upon the alienee.” (Co. Litt. then intermarried with John Whichelo, and afterwards 172. b.) It is evident, therefore, that Lord Coke, though died, leaving John Whichelo the defendant her eldest well acquainted with the rule that an estate tail should son and heir of her body. John Whichelo the defenddescend per formam doni, yet never for a moment sup- ant then entered into the whole of the premises, unposed, that, on the decease of the younger daughter, her der the impression, that, as he was heir to Richard moiety would descend half to her sister, and half to Lemmon the son, he was entitled to the whole. In her issue; for he presumes, of course, that the issue this, however, he was clearly mistaken; for the descent would enter into half the lands entailed, that is, into the of an estate tail is, as we have said, traced from the whole of the moiety of the lands which had originally purchaser, or first donee in tail, per formam doni. belonged to their mother. After the decease of the The heirs of the purchaser, Richard Lemmon the fayounger sister, the heirs of the body of her father were ther, were clearly his four daughters, or their issue; no doubt the elder sister and the issue of the younger; | for the daughters by the second wife, though of the half but, as to the moiety which had belonged to the younger blood to their brother by the former wife, were, equally sister, this, as clearly, was not the case: the heir of the with their half-sister Martha, of the whole blood to body of the father to inherit this moiety was exclusively their common father. The only question then is, in the issue of such younger daughter, who were enticled what shares the daughters or their issue became entito the whole of it in the place of their parent. This tled. At the time of the ejectment all the daughters incidental allusion of Lord Coke is as strong, if not were dead. Elizabeth was dead without issue, wherestronger, than a direct assertion by him of the doctrine; upon her one equal fourth part devolved, without disfor it seems to shew that a doubt on the subject never pute, on her three sisters, Martha, Anne, and Grace: entered into his mind.
each of these, therefore, became entitled to one equal At the end of the section of Littleton to which we third part. Martha, as we have seen, died, leaving lave referred, it is stated that the contrary is holden John Whichelo the defendant her eldest son and heir M., 10 Hen. 6, scil., that the heir may not enter upon of her body. Anne died, leaving James Gregory, one the parcener who hath the entailed land, but is put to l of the lessors of the plaintiff, her grandson and heir a formedon. On this Lord Coke remarks, (Co. Litt. of her body; and Grace died, leaving Diones Geere, 173. a.), that it is no part of Littleton, and is contrary the other lessor of the plaintiff, her only son and heir to law, and that the case is not truly vouched, for it is of her body. Under these circumstances, an action not in 10 Hen. 6, but in 20 Hen. 6, and yet there is but of ejectment was brought by James Gregory and Diones the opinion of Newton, obiter, by the way. On refer-Geere for two equal third parts of the premises; and ring to the case in the Year Books, it appears that Yel- they obtained a verdict accordingly for two equal verton contended, that, if the sister who had the fee third parts, and neither more nor less. Neither the simple aliened, and had issue, and died, the issue would counsel engaged in the cause, nor the court, seem for be barred from the land entailed by the partition, which a moment to have imagined that they could have been would be a mischief. To this Newton replied, “No entitled to any other shares. It is evident, therefore, sir; but he shall have formedon, and shall recover the l that the court supposed, that, on the decease of Martha,