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are each liable for the default of the ancestor or testator, to the extent of assets, freehold and copyhold, taken by descent or devise, and must be jointly sued; although if there be no heir, the devisee may now be sued alone,(9) though he could not have been so prior to the recent stat. 11 Geo. 4 & 1 Will. 4, c. 47.(r) If the heir be not named in the ancestor's bond, he will not be liable even on his express promise to pay in consideration of forbearance; but, if named, it seems he would in this case be liable, although without assets by descent.(s)

149. This liability of the heir existed at common law; but the devisee was first rendered liable in an action of debt by stat. 3 & 4 Will. & M. c. 114(t) and now in an action of debt or covenant by statute 11 Geo. 4 & 1 Will. 4, c. 47, repealing the former enactment. It does not appear, however, that this statute gives any remedy against the devisee, where the damages are unliquidated, and the breach of covenant subsequent to the death of the covenantor.(u) In case of the death of the original devisee before [*117] action brought, his devisees may be sued jointly with the heir.(x) 150. In order then to render the heir liable on the ancestor's specialty, it is necessary, first, that he be expressly named in the bond or covenant; whence it follows, that he will not in general be liable on an implied covenant;(y) and, secondly, that he have assets by descent from the covenantor; for though the covenant descends to the heir, whether he inherits any estate or not, it lies dormant, and is not compulsory until he has assets by descent.(z) However, a mere equity of redemption is not assets at law, to charge the heir or devisee; but in equity it is so;(a) and now a debtor's real estate not charged with or devised subject to the payment of his debts, is assets to be administered by courts of equity for that purpose.(b) 151. Where lands are devised subject to and charged with the payment of a legacy, it seems doubtful whether an action lies against the devisee for the recovery of the legacy ; (c) perhaps if a testator left an estate in fee to *A., directing him to pay a sum of money to B., after A. had [*118] accepted the estate, an action of debt might lie against him at the suit of B., founded upon the duty created by the testator, of paying him the sum directed. (d) But at all events such an action could not be sustained against parties holding a term by way of mortgage under the devisee.(e)

(g) 11 Geo. 4 & 1 Will. 4, c. 47; 2 Bla. Com. 16th ed, 304, n. (4); 3 Id. 158, n. (10). See the form, Chitt, jun. Pl. 467. 485, n. (a).

(r) Hunting v. Sheldrake, 9 M. & W. 256.*

(s) Barber v. Fox, 2 Wms. Saund. 136, 137 b.; Co. Litt. 209, a.

(1) See Farley v. Briant, 3 A. & E. 847. 850. 859; Dyke v. Sweeting, Willes, 585, 587; Per Grose, J., Wilson v. Kimbley, 7 East, 135; Platt on Covenants, 305. 452,*

(u) Farley v. Briant, 3 A. & E. 839, which, however, was decided under the previous stat. 3 & 4 Will. & M. c. 14; Chitt. Arch. Pr. 7th ed. 884, (a); Chitt. jun. Pl. 467, (e), and see the declaration in covenant against heir and devisee, Id. 467. (x) Stat. 11 Geo. 4 & 1 Will. 4, c. 47, s. 3.

(z) 2 Bla. Com. 244.

(y) Platt on Covenants, 449.

(a) Jeffreson v. Morton, 2 Wms. Saund. 7, n. (4); Bac. Ab. Heir, (I). See Mayor of Carlisle v. Blamire, 8 East, 487. (b) Stat. 3 & 4 Will. 4, c. 104.

(c) See Lord Holt's dictum, Ewer v. Jones, 2 Salk. 415, S. C. 2 Lord Raymond, 937; commented on and qualified in Braithwaite v. Skinner, 5 M. & W. 313.* (d) Per Parke, B., Braithwaite v. Skinner, 5 M. & W. 325.*

(e) Braithwaite v. Skinner, 5 M. & W. 313.*

*Eng. Com. Law Reps. 30. 'Id. 14. Reprinted at $2.50 per vol.

152. As regards the personal representatives of the obligor or covenantor, they are liable to the extent of assets, although not named, except on a cove nant which from its nature must be performed by the covenantor, and determines by his death ;(g) and where the real and personal representatives are alike liable, the plaintiff may elect to sue either(h) or both separately.(i) It may be observed too that an express promise will not support an action against the personal representatives for a legacy or for a distributive share of the personal estate.(k)

153. In suing on a simple contract, the party to be made defendant is he by whom it was concluded, and who is rendered liable either by the express and avowed *terms of the contract,(1) or by those implied terms which reason and justice dictate, and which the law presumes that [*119] every man undertakes to perform; (m) as, where money is received, which ex æquo et bono the party receiving ought to refund, either because it was paid by mistake or upon a consideration which happened to fail, or because obtained through imposition, express or implied, or through extortion, oppression, or an undue advantage taken of the plaintiff's situation. (n)

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154. Where several persons stipulate for the performance of a particular act, the law implies that they are bound jointly and not severally; and there must be express words in order to create a several responsibility.(0) It is also clear, that on a written agreement, the plaintiff can only sue the defendants in the manner in which the latter have made themselves liable ;(p) and, if there be *any difficulty in determining the proper parties to be sued, such difficulty must arise from an ambiguity in the particular instrument on which the liability is sought to be established.(g) 155. On a verbal contract, however, it is often a question of great nicety, whether the particular liability be joint or several, for this depends on the evidence adduced, the effect of which must be left to the consideration of the jury.(r) It is not enough to show that credit was given to several jointly, without some proof of their contracting jointly, either expressly or

(g) See further as to the liability of executors and administrators, post, s. 175; Hyde v. Dean of Windsor, Cro. Eliz. 353'; Co. Litt. 209, a.; 3 Bla. Com. 16th ed. 158, n. (10). (h) Davies v. Churchman, 3 Lev. 189; Davy v. Pepys, Plowd. 439 b.

(i) Haight v. Langham, 3 Lev. 303.

(k) Deeks v. Strutt, 5 T. R. 690; Jones v. Tanner, 7 B. & C. 542. 544;1 and cases cited in Braithwaite v. Skinner, 5 M. & W. 313, and Id., per Parke, B., 325.

(1) See Webb v. Rhodes, 3 Bing. N. C. 732.m

(m) 2 Bla. Com. 443; Per Lord Ellenborough, C. J., Annett v. Carstairs, 3 Camp. 356. See Chitt. jun. Contr. 3rd ed. 19-27; Id. 541, 542; Per Lord Loughborough, C. J., Jenkins v. Tucker, 1 H. Bla. 93; Exall v. Partridge, 8 T. R. 308; Alexander v. Vane, 1 M. & W. 511; Per Lord Kenyon, C. J., Child v. Morley, 8 T. R. 613, 614.

(n) Per Ld. Mansfield, Č. J., delivering the judgment of the court, Moses v. Macfarlane, 2 Burr. 1012.

(0) Chitt. Contr. 3rd ed. 99; Forster v. Taylor, 3 Camp. 49, 51, n.; Hussey v. Crickitt, Id. 168; Wathen v. Sandys, 2 Camp. 640; City of London Gas Company v. Nicholls, 2 C. & P. 365. The costs of an election petition, under 9 Gco. 4, c. 22, ss. 57. 63, may be recovered against one of several petitioners, Gurney v. Gordon, (in error,) 2 Cr. & J. 614; Fector v. Beacon, 5 Bing. N. C. 302.

(p) Per Lord Denman, C. J., Lee v. Nixon, 1 A. & E. 207, 208.°

(4) Collins v. Prosser, 1 B. & C. 682; Lee v. Nixon, 1 A. & E. 201. As to joint and several promissory notes, 1 Selw. N. P. 10th ed. 385; Clark v. Blackstock, Holt, N. P. C. 474 Lord Galway v. Matthew, 1 Camp. 403; March v. Ward, Peake, N. P. C. 130. (r) See Kirby v. Banister, 5 B. & Ad. 1069.s

Eng. Com. Law Reps. 14. Id. 32. "Id. 14. Id. 28. Id. 28. Id. 3. Id. 27. *Reprinted at $2.50 per vol.

impliedly,(s) or that the work done was for their joint benefit ;(f) and a plea in abatement for non-joinder of a co-contractor, was held good, where the evidence in support of the declaration only established contracts by all the defendants jointly with another party, and by several defendants both with and without such other party ;(u) but the plea in abatement must be confined to those parts of the declaration to which it is applicable, and must not be pleaded generally, unless the objection of non-joinder hold equally as to` all causes of action *included therein against the defendants on the [*121] record.(x)

156. Where one of several joint contractors has been discharged from liability by bankruptcy and certificate, or under an insolvent act, such discharge does not operate as a discharge of those who were jointly bound, or had jointly contracted with him ; (y) and may now be replied to a plea in abatement of non-joinder;(z) so, a co-defendant discharged from liability by the Statute of Limitations, may be omitted ;(a) and surviving joint contractors need not be declared against as such ;(b) nor must the representatives of the deceased be joined as defendants. (c) A judgment recovered against one of two joint contractors is pleadable in bar in an action against the other.(d) Though a plea in abatement has been held bad which stated that the debt sued for was contracted by defendant jointly with one A. B., and *that an action for recovery of the same debt is pending against the [*122] said A. B.(e) . 157. On a joint and several contract the plaintiff must sue all the contracting parties jointly, or any one individually; and either course of proceeding may be adopted at his election:(f) but the debtee's discharge of one joint and several debtor, as in the case of a joint and several promissory note, is a discharge of all. (g) And it must be observed, that the introduction into a contract of terms expressly joint, will entail a joint liability, though the parties would otherwise have been only severally liable; as,

(8) Eaden v. Titchmarsh, 1 A. & E. 691. 694; Malkin v. Vickerstaff, 3 B. & Ald. 89 ;t Lanchester v. Tricker, 1 Bing. 201;" Northwaite v. Bennett, 2 Cr. & M. 316; Massey v. Knowles, 2 Stark. R. 65; Leigh v. Taylor, 7 B. & C. 491 ; post, s. 184.

(1) Hellings v. Gregory, 1 C. & P. 627.a

(u) Hill v. White, 6 Bing. N. C. 23.b

(x) Hill v. White, 6 Bing. N. C. 26. As to pleading non-joinder in abatement, see judgment, King v. Hoare, 13 M. & W. 505; Bleakley v. Jay, 13 M. & W. 464; Davies v. Thomson, 14 M. & W. 161. Cocks v. Brewer, 11 M. & W. 51. Bull v. Taylor, Q. B., Trin. T., June 13, 1846. As to misjoinder see Robeson v. Ganderton, 9 C. & P. 476.a As to the effect of paying money into Court on a joint contract, see Archer v. English, 2 Scott, N. R. 156; Charles v. Branker, 12 M. & W. 743.*

(y) 5 & 6 Vict. c. 122, s. 37; 6 Geo. 4, c. 16, s. 121. (*) 3 & 4 Will. 4, c. 42, s. 9.

(a) 9 Geo. 4. c. 14, s. 2.

(b) Richards v. Heather, 1 B. & Ald. 29; Per Grose, J., Smith v. Barrow, 2 T. R. 479. See per Lord Mansfield, C. J., Rice v. Shute, 5 Burr. 2613; 1 Wms. Saund. 153, n. (1); Hawkins v. Ramsbottom, 6 Taunt. 179; Chitt. jun. Pleading, 152, and n. (d).

(c) Calder v. Rutherford, 3 B. & B. 302;e supra, n. (d).

(d) King v. Hoare, 13 M. & W. 494;* secus where the debt is joint and several. (e) Henry v. Goldney, 10 Jur. 437.

(f) Hammond, Parties to Actions, 47. 229; Per Lord Denman, C. J., Lee v. Nixon, 1 A. & E. 207, 208; ante, s. 141.

(g) Payment by one co-contractor is the payment of each; Beaumont v. Greathead, 15 L. J., N. S., C. P., 130; Nicholson v. Revill, 4 A. & E. 675; Per Eyre, C. J., Cheetham v. Ward, 1 B. & P. 633. See Bain v. Cooper, 9 M. & W. 701.*

Eng. Com. Law Reps. 28.
cId. 37.

Id. 33. eld. 7.

Id. 5. "Id. 8. *Id. 14. vId. Id. 11.
fId. 28. Id. 31. Reprinted at $2.50 per vol.

bld. 37.

where two promised jointly and severally to perform an award; and the arbitrator awarded each of the two to pay a certain sum to the plaintiff: it was held that the latter was entitled to sue both jointly for the entire amount of the sum awarded.(h) On the other hand, where words of severalty are introduced into the contract or agreement, the parties thereby incurring liability must have the benefit and protection resulting from them.(i)

158. Where one party becomes surety for another, he must be declared against as such, and not jointly with his principal; as in the case of a bill of exchange drawn on and accepted by A., and also accepted by B., *where A. must be sued as acceptor, but B.'s undertaking is clearly [*123] collateral,(n) there being a manifest distinction between a collateral engagement for another and an original and direct agreement for the party's own act.(0) Where, therefore, from the particular facts in evidence, it appears that A. supplied goods to B., on the credit of C., A.'s remedy is against C., who may subsequently recover over against B. ;(p) but if the understanding was that B. should pay, C. undertaking that such payment should be duly made; in this case, C.'s security is collateral and within the Statute of Frauds, the question to whom credit was given being for the jury.(q)

159. Whether several may be joined or not as defendants in debt on a penal statute, will depend on whether the offence is by the provisions of the statute considered to be joint or several; as if it provide that one penalty shall be paid by several offenders,(r) or by each individually ;(8) and in the absence of any necessary inference from the particular enactment, the above question must be determined by the nature of the offence in legal contemplation.(t)

*160. We have already seen(u) that certain instruments are negotiable for mercantile purposes, and that under particular circum- [*124] stances the liability on a parol contract is transferable; thus, where it has been admitted and agreed beyond dispute that a defined and ascertained sum is due from A. to B., and that a larger sum is due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promises to pay B. the amount owing to him by A.; an action will lie by B. against C.(x) To this we may add, that where money is remitted to one party for the benefit of a third, the latter cannot maintain an action in respect thereof against the former, unless something has been done by the remittee amounting to an assent or agreement on his part to hold the sum remitted for the

(h) Mansell v. Burredge, 7 T. R. 352, cited 2 Wms. Saund. 61 h, n. (2).
(i) Lee v. Nixon, 1 A. & E. 201.

(n) Jackson v. Hudson, 2 Camp. 447; Ferris v. Bond, 4 B. & Ald. 679.h
(0) Chitt. Contr. 3rd ed. 499.
(p) Chitt. Contr. 3rd ed. 597.

(9) Simpson v. Penton, 2 Cr. & M. 430, and cases there cited; Birkmyr v. Darnell, 1 Salk. 27, 2 Lord Raymond, 1083, S. C. Chitt. Contr. 3rd ed. 508–517; Sweeting v. Asplin,

7 M. & W. 165.*

() Hardyman v. Whitaker, 2 East, 573. 574.

(8) King v. Share, 11 Law Journ., N. S., Q. B. 163; Per Lord Kenyon, C. J., Peshall v. Layton, 2 T. R. 713. Reg. v. Dean, 12 M. & W. 39.*

(t) Barnard v. Gostling, 2 East, 569, affirmed in error, 1 B. & P., N. R. 245; Bristow V. James, 7 T. R. 257. (u) Ante, s. 27.

(2) Per Lord Tenterden, C. J., Fairlie v. Denton, 8 B. & C. 400; Wilson v. Coupland, 5 B. & Ald. 228;k Hodgson v. Anderson, 3 B. & C. 842; Per Holroyd, J., Wharton v Walker, 4 B. & C. 166; Per Buller, J., Tatlock v. Harris, 3 T. R. 180.

8Eng. Com. Law Reps. 28. hId. 6. Id. 15. Id. 7. Id. 10.
*Reprinted at $2.50 per vol.

MAY, 1847.-7

purpose indicated by his principal; and an express repudiation by him is unnecessary, for his privity to the arrangement will not be presumed.(y) Of course the remittee's authority may be revoked before the remittance has been applied pursuant to the original instructions of the principal, and in the absence of any pledge that it will be so applied; in which case the remittee holds the money to the use of the principal, and will be [*125] liable accordingly.(z) But where a party engages himself to appropriate the proceeds of goods consigned to and sold by him, by direction of the owner, to the payment of certain acceptances held by a third person, unless previously honoured, none of the parties are at liberty, without the assent of all, to alter that arrangement.(a)

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CHAPTER II.

1. LANDLORD AND TENANT, ss. 161-181.

2. PRINCIPAL AND AGENT, ss. 182-206.

3. PARTNERS, CORPORATIONS, COMPANIES, ss. 207-217.

1. LANDLORD AND TENANT.

Liability of Landlord, s. 161. Where several Parties are interested in the demised Premises, ss. 162, 163. Liability of Parties after assignment of the Reversion, ss. 164—— 166. Liability of the Tenant, ss. 167, 168. Liability of parties after Assignment of the Term, ss. 169-175. After Death of Lessee or Assignee, ss. 176-180. In case of an underlease, s. 181.

161. WHERE a demise is by deed, and the parties to such demise are single, no difficulty can arise in determining the party to be sued for breach of covenant, such party being liable in respect of the privity of contract, whether the covenant be such as runs with the land, or is merely of a personal nature. (a) In the absence of any express contract between the parties, an implied contract may also be inferred from the fact of occupation as tenant; and such occupation may be constructive as well as actual, it being a general rule, that the common count for use and occupation applies wherever the defendant uses or enjoys premises as a tenant by the plaintiff's permission.(b) Therefore, if A. agree to let lands to B., who permits C. to occupy them, A. may recover the rent in an action against B. for use and occupation.(c)

[*127] 162. Where parties have a joint legal interest in land demised, as where

(y) Wedlake v. Hurley, 1 Cr. & J. 83; Williams v. Everett, 14 East, 582; Per Bolland, B., Bruid v. Hampshire, 1 M. & W. 373;* Stewart v. Fry, 7 Taunt. 339. See also Israel v. Douglas, 1. H. Bla., 239, and the remarks on this case, and as to when a special count should be used, Chitt. Contr. 3rd ed. 615; and see 14 East, 587, n. (a).

(z) Gibson v. Minet, 2 Bing. 7;n Hodgson v. Anderson, 3 B. & C. 842. 854,° recognised per Alderson, J., Crowfoot v. Gurney, 9 Bing. 376, 377.P

(a) Walker v. Rostron, 9 M. & W. 411.*

(a) Woodfall, L. & T. 4th ed. 596, 597.

(c) Bull v. Sibbs, 8 T. R. 327.

(b) Id. 640.

"Eng. Com. Law Reps. 2. Id. 9. Id. 10. Id. 23. Reprinted at $2.50 per vol.

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