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likewise upon a bill alleging an agreement to In what cases carry on the game of EO, and a contribution for granted. that

purpose, was of opinion that relief ought to be given, and directed an issue, to try, whether the alleged agreement had been entered into (a). So also Lord Rosslyn was of opinion, that both smuggling transactions, and illegal dealings in stock, might be brought into account; and actually decreed an account of the profits of a partnership to be jointly concerned in illegal insurancès (6). These determinations are extremely questionable, and the last has been expressly overruled, by Sir W. Grant (c).

The doctrine upon the subject of relief from penal- Relief ties has thus been stated by Lord Thurlow: “Where feiture and

against fora penalty is inserted merely to secure the enjoyment penalties. of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only is accessional, and to secure the damage really incurred (d).” But where the parties, instead of securing the performance of the agreement by a penalty, have fixed upon a certain sum by way of liquidated damages, to be paid in the event of the non-performance of the agreement, a court of equity (except in certain cases of waste, which will be noticed hereafter), refuses to interfere in restraining the recovery of such damages (e).

(a) Nash v. Ash, 1 Eden, 378.
(6) Watts v. Bullas, 3 Ves. 612.
(c) Knowles v. Haughton, 11 Ves. 168.
(d) Sloman v. Walter, 1 Bro. C. C. 419.
(C) A difficulty frequently occurs in these cases, in determining

In what cases

Upon these principles, courts of equity intergranted.

pose to restrain proceedings at law for the recovery of penalties (a). But where a forfeiture had happened under a by-law of a corporation, which provided that members should receive notice of default in paying a call, and incur the forfeiture by non-payment ten days after the notice sent, Sir W. Grant refused to relieve, though the lapse arose from ignorance of the call, from accidental circumstances, and absence from town when the notice was sent. He mentioned a case in Ireland, of a person who, after having paid some instalments on a lease, neglected to make a further payment, and forfeited the instalments he had paid(b). And though

whether the sum specified in the agreement should be considered
in the nature of liquidated damages, as in Ponsonby v. Adams,
6 Bro. P. C. 417. Ed. Toml. vol. 2. 431. Rolfe v. Peterson,
ib. 470. Roy v. Duke of Beaufort, 2 Atk. 190. Lowe v. Peers,
4 Burr. 2229. Fletcher v. Dyche, 2 T. R. 52. and semble, Cock v.
Richards, 10 Ves. 429. Barton v. Glover, 1 Holt, 43. Or penalty,
as in Sloman v. Walter, 1 Bro. C. C. 418. Hardy v. Martin, 1
Cox, 26. Astley o. Weldon, 2 B. & P. 346. Smith v. Dickenson,
3 B. & P. 630. Harrison v. Wright, 13 East, 343. Wilbeam v.
Ashton, 1 Camp. 78. It is difficult to lay down any general
principle upon this subject; it is, however, clear, that if a certain
damage less than the sum, is made payable upon the face of the
same instrument, it should then be construed to be a penalty:
so also where articles contain covenants for the performance of
several things, and then one large sum is stated at the end, to be
paid upon breach of performance; but the argument, that if the
sum would be disproportionately large as liquidated damages, it
should be taken to be a penalty, though according to the natural
construction of the words it should seem to be damages, has been
exploded.

(a) i Fonb. 5th Ed. 153.
(6) Sparks v. Liverpool Water-works Company, 13 Ves. 428.

relief has sometimes, been given against the for- In what cases feiture of a covenant for a renewal (a), which in granted. Ireland formed a distinct head of local equity (6), yet the inclination of the courts is to the contrary, unless the right has been forfeited in consequence of fraud, accident, mistake, or any similar equity (c). A common instance of this species of relief, is Forfeiture

for non-pay. that which is given against a clause of re-entry for ment of rent. non-payment of rent. This has been a ground of equitable interference from the earliest times, and there has been a parliamentary recognition of the doctrine by the st. 4 Geo. 2. c. 28. §. 2 & 3. which, limiting the time within which such relief is to be

is to be given to six months, permits the tenant to pay

into court at any time before the trial of an ejectment,

There is a case in the Hargrave MSS. in which Lord Harcourt relieved a member of a benefit society against a forfeiture incurred by neglecting to pay the weekly instalments; but the reasoning of Sir W. Grant is so conclusive and satisfactory, that it is probable, if the question should ever be agitated again, that his decision would be adhered to.

(a) Rawstone v. Bentley, 4 Bro. C.C. 415.

(6) O'Neil v. Jones, 1 Ridg. 170. Kane v. Hamilton, ib. 180. Bateman v. Murray, ib. 187. Boyle v. Lysaght, ib. 184. S. C. Vern. & Scriv. 135. Magrath v. Lord Muskerry, ib. 166. S. C. 1 Ridgw. 463. Jackson v. Saunders, 1 Sch. & Lef. 443. 2 Dow. 437. Lennon v. Napper, 2 Sch. & Lef. 682. Magrane v. Archbold, 1 Dow. 109. Earl of Mountnorris v. White, 2 ib. 459. Barrett v. Burke, 5 ib. 1. Keating v. Sparrow, 1 Ba. & Be. 367. Jessop v. King, 2 ib. 81. Barrett v. Pearson, ib. 189.

(c) Allen v. Hilton, 1 Fonb. 452. 5th Ed. Bayley r. Corporation of Leominster, 3 Bro. C. C. 529. Baynham v. Guy's Hospital, 3 Ves. 295. Eaton v. Lyon, ib. 690. City of London v. Mitford, 14 Ves. 41.

1

In what cases the arrears of rent and costs, and provides that all granted.

further proceedings shall thereupon cease.

Formerly, when only one breach could be assigned, and a verdict had been found for the penalty, if that breach was

the

non-payment of rent, and the plaintiff at law, upon a bill filed to be relieved against it, alleged that there were other breaches, an issue was directed to ascertain whether there had been a breach of

any of those covenants against which a court of equity will not relieve. This circuitous course of proceeding, it is said, attracted the attention of the legislature, and occasioned the statute of 8 & 9 W.3. c. 11. by which a plaintiff is allowed to assign as many breaches as he pleases, and the jury to assess separate damages on such as are proved (a). In cases of this nature if the form of the declaration be such, that the breaches upon which the plaintiff intends to rely do not appear, the defendant may obtain, by a judge's order, a particular of them. But, though this particular precludes the plaintiff from proceeding upon any breach not contained in it, yet it does not impose upon him the necessity, after proving one breach, to proceed upon the others (6). The consequence is, that where the breach is the non-payment of rent, a court of equity compels a landlord to go on and prove some other breach, or else relieves from the forfeiture (c). Thus, where a tenant, having omitted to move for a particular of the breaches, suffered judgment by de

(a) 2 Price, 219.
(6) 10 Ves. 70. 3 V. & B. 24.
(c) 3 V. & B. 30. Davis v. West, 12 Ves. 475.

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fault, and then filed a bill, alleging that he had In what cases committed no other breach of the covenant, except

granted the non-payment of rent, an issue was directed (a). But in another case, where there had been a verdict upon a breach as to the mode of cultivation; and the landlord by his answer stated, that he had been prepared at the trial to prove every breach of co- . venant of which the tenant might have been guilty, and could have proved breaches against which the court would not relieve; that he was going into evidence with that view, but that the judge at the trial interfered upon the first breach as sufficient, Lord Eldon, without determining whether relief, could be given upon the breach on which the landlord did recover, observed, that if he granted an injunction, he should merely send the parties to try other breaches, of which, if the answer was true, the defendant had abundant proof, and accordingly refused it (b). This relief is granted upon the principle that com- Forfeiture

for breach of pensation is made to the landlord by the payment of the rent with interest; a doctrine contradicted by to repair, &c. general experience, and often found fault with as imperfect and unjust (c). Lord Northington appears, by analogy to it, to have been of opinion, that the court might relieve, where a tenant had committed a forfeiture by cutting down timber (d). It is, however, scarcely necessary to remark, how extremely inadequate pecuniary compensation must generally

covenants

(a) Wadman v. Calcraft, 10 Ves. 67.
(6) Lovat v. Lord Ranelagh, 3 V. & B. 24.
(c) 16 Ves. 405. 18 Ves. 61. 2 Price, 216. 19 Ves. 140.
(d). Northcote v. Duke, 2 Eden, 322. S. C. Amb. 511.

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