JUNE 28, 1851.] V. C. TURNER'S COURT. THE LAW TIMES. V. C. TURNER'S COURT. ferred by an order of the Lord Chancellor to the use of the plaintiff, John Marker, second son of the 66 V. C. TURNER'S COURT. plaintiff, Thomas John Marker, for life, without im- instituted in the name of the infant plaintiff, Richard between the parties on the present motion. The suit peachment of waste, save as aforesaid, with divers Marker, having been disposed of by the allowance remainders over, and with the ultimate remainder to of the demurrers, the defendants, Kekewick and And it is hereby were not bound to resort to timber in the first inthe use of the defendant, Henry William Marker, in Pulman, the trustees, it appears were advised that fee. By this deed the trusts of the term of 1,000 the decision in that suit determined only that they years were declared as follows:agreed and declared between and by the parties to stance for raising the sums of 10,0007. but left the these presents, that the manors, capital and other question undetermined, whether they have not a messuages, tenements, farms, lands, advowsons, and right to resort to the timber or to the estate for the Samuel T. Kekewich and James Pulman, their accordingly made a communication to that effect to other hereditaments herein limited to the said purpose, according to their discretion; and they, executors, administrators, and assigns, for the said the defendant, Henry William Marker. The deWednesday, April 23.-The VICE-CHANCELLOR. term of 1,000 years, are limited to them, upon and fendant, Henry William Marker, having, on the -This was a motion on the part of the plaintiff for for the trusts, intents, and purposes following; that 10th of December, 1850, advertised the 700 oak an injunction to restrain the defendant, Henry is to say, upon trust, in the first place, by cutting, trees, which are in question on the present motion, William Marker, his servants, workmen, and agents, and felling, and converting into money all or any with 100 ash trees, which have since been cut down from cutting down or felling, or permitting to be cut part or parts of the timber now standing and grow upon the estate, for sale, upon the 31st of December; down or felled, 700 oak trees, marked or numbered ing on the said lands which is, or shall be, of full and the trustees, on the 21st of that month, filed their progressively 1 to 700, in the bill mentioned, or any ripe growth, and not ornamental to the mansion at bill in this court against the defendant, Henry Wilother trees growing on the estates in the bill men. Combe aforesaid, or the pleasure-grounds attached liam Marker, and the plaintiff in the former suit, tioned, which afford, or give protection, shelter, or thereto, or any of the views or prospects of the same, and the other parties interested under the settleornament to Combe House, in the bill mentioned, or of which timber it is hereby declared, that enough of ment of October 1844, praying that it might be the buildings or offices thereof, or the pleasure- the most ornamental shall always remain to preserve declared, that according to the true meaning and grounds attached thereto, or any of the views and the beauty of the place unimpaired; or, by demis- construction of the said indenture of settlement, The trees in question are ing, mortgaging, or selling the premises comprised the plaintiffs, the trustees, were entitled to use and prospects of the same. all of settlement as to the mode in which the three several standing upon an estate of about 1,700 acres, and in in the said term, or any part or parts thereof (save exercise a discretionary power in accordance with which the mansion-house called Combe House is and except the mansion-house of Combe as afore- the trusts declared by the said indenture of built. It appears to be an old mansion-house, said, and the estates of Gittisham," and so on, situate on the slope of a hill, and built in the which are hereby expressly reserved from sale), for sums of 10,000l. each, thereby directed to be levied Elizabethan style, with a terrace front, and with all or any part of the said term, or by all or any and paid, should be levied and raised, and that the shrubberies and pleasure-grounds attached to it. of the said ways or means, or any other reasonable plaintiffs, the trustees, had a discretionary power to This hill rises gradually at the back of the house, ways or means forthwith, to levy and raise the clear raise and pay the same, or any part thereof, either and there are upon the rise of the hill three woods, sum of 10,000l. and to pay the same to the said by resorting to the timber of ripe and full growth, as she or they shall order and sion-house of Combe, and the pleasure-grounds called Cross-park-wood, Combe-wood, and the Margaretta Marker, her executors, administrators, other than such as was ornamental to the said manKennel-coppice, which form a belt, or boundary, to or assigns, or the pleasure-grounds, and contain together about direct for her and their own absolute benefit; attached thereto, or any of the views and prospects Above these woods there is a and, in the next place, from and immediately thereof, which were then standing or growing, or thirty-three acres. range of sheep pastures, and the higher summit of after the decease of the said Margaretta Marker, which, until the said money should be fully raised the hill is again clothed or fringed with wood. There by all or any of the ways and means afore- and satisfied, should be standing or growing on the is a footpath leading from the mansion-house through said, to levy and raise two several sums of 10,0001. said estates; and that the right of the said defendant, the Cross-park-wood to the rectory-house and and 10,000l. and to pay the first of those two se- Henry William Marker, or any other of the defendgrounds; and this footpath is bounded by laurels veral sums of 10,000l. each unto the said Thomas ants thereto who, under the limitations of the said There are two rookeries in John Marker, his executors, administrators, and indenture of settlement, were made tenants for life and holly trees. Combe-wood and Kennel-coppice; and the farm assigns, for his and their absolute benefit, and to be of the said estates, to cut or fell any such timber buildings lie at the back of the Combe-wood. 500 by him and them received in satisfaction of any was subordinate to the right of the plaintiffs, the of the 700 oak trees now proposed to be cut are claim he may have on his brother, whether legally trustees, to exercise such discretionary power, and standing in the above-mentioned woods; some few or otherwise, under the codicil to the last will and that the said defendant, Henry William Marker, of them form part of the rookeries, a few others im-testament of his uncle, the Reverend Thomas Putt, and his servants and agents might be restrained by -mediately adjoin the rectory footpath, and the rest deceased; and to pay over and apply the last of the the order and injunction of this Court from cutting -are trees standing either separately, or together in two several sums of 10,000l. each to such persons, or felling any such timber, or selling or disposing -small numbers, in different parts of the woods. The and in such manner, as Margaret Frances Smith, thereof, whilst the said moneys, by the said indenremaining 200 oaks stand either in hedge-rows or the wife of the Reverend George Townsend Smith, ture of settlement directed to be levied and raised, fields, and are upon lands forming part of the formerly Margaret Frances Marker, a daughter of were not raised; the plaintiffs, the trustees, being estate. Eleven of these trees are described as stand-the said Margaretta Marker, shall, by any writing ready and willing, and thereby offering forthwith, to ing in an elevated position, above a small orchard under her hand appoint:" and then there is a pro- take all measures and proceedings necessary or prowhich adjoins the lawn, and as being in view of the viso for a cesser of the term. The deed also con- per, in accordance with the trusts and discretionary mansion and its approaches, and five others of them tains powers of jointuring to tenants for life, and power vested in them by the said indenture of settleare described as being in a field adjoining the public powers of leasing, and of sale and exchange, and the ment for levying and raising the same moneys so far road, running through the property from the village usual provisions for the change, and indemnity, of as the same then remained unsatisfied. There are of Gittisham to the rectory, but not in view of the the trustees. It appears that the tenants for life, other parts of the prayer of the bill, but they do not house. The position of the rest of the 200 oaks under the will of Thomas Putt, although their appear to me to be material to the present question. does not appear by the affidavits. The mansion-estates were impeachable of waste, on several occa- That bill was filed by Mr. Gidley, as solicitor for -house and lands at Gittisham form part of a large sions cut down timber in the three woods about the the trustees, Kekewich and Pulman, the then plainestate, called the Combe estate, which was formerly mansion-house, both for use and for sale. But it is tiffs, and now defendants, and Mr. Gidley acted as the property of Thomas Putt, and contains about clear, that there was a very large quantity of timber solicitor for the present plaintiffs as defendants in -4,000 acres. Thomas Putt died in the year 1787, fit for cutting upon the estate, and particularly in that suit, and as their solicitor in the present suit; during her as not being " ornamental to the mansion-house, or did the trustees having by his will devised the estate to uses, in strict these woods when Margaretta Marker came into and the timber advertised to be sold, including the settlement. From the time of his death until the possession in August, 1844. Margaretta Marker oaks now in question, was clearly treated by this bill were of the same," it being probably considered necessary 24th of August, 1844, the estate was held by several did not, few larch or fir trees, which tenants for life in succession, whose estates, under life, cut down any trees upon the estate, ex-pleasure grounds, or any of the views or prospects the limitations of his will, were unimpeachable of cept waste. On the 24th of August, 1844, Margaretta cut by her, and no part of the 10,000l. secured to so to treat it in consequence of the terms of the deMarker came into possession of the estate as her under the trusts of the term was raised or paid claration of trust as to the ornamental timber. Upon She barred the entail of the in her life time. She died in July, 1846, having by the filing of this bill, application was made to Lord tenant in tail. estate, and by a deed dated the 11th of October, her will appointed the defendant, Henry William Cranworth for the injunction; but his lordship de1844, resettled it, in consideration of natural love Marker, to be her executor. Upon the death of clined to grant it, the defendant, Henry William and affection, to the use of the defendants, Kekewich Margaretta Marker, the defendant, Henry William Marker (who, it must be observed, was not only and Pulman, for the term of 1,000 years, without Marker, entered into possession of the estate as tenant for life, but also entitled, as personal repreimpeachment of waste, save only the cutting and succeeding tenant for life, under the resettlement. sentative of Margaretta Marker, to the unpaid parts felling of ornamental timber, as thereinafter men- In January, 1849, 1,9001. or thereabouts, was raised of the 10,0001. secured to her under the trusts of the tioned, and after the determination of the said term, by sale of timber upon the estate, and received by term), undertaking to account for the produce of the and in the meantime subject thereto, and to the him as part of the 10,000l. secured to Margaretta timber if and as the Court shall direct. The injunctrusts thereof, to the use of her the said Margaretta Marker under the trusts of the term. Up to this tion having been thus refused, the 700 oaks and the Marker for her life, without impeachment of waste, period, no difference appears to have arisen between 100 ash trees were sold to different purchasers on the save only the cutting and felling of ornamental the parties, but, some time in the year 1850, a 31st of December last, and the ash trees have been are infants, latter of whom timber as thereinafter mentioned, with remainder to question arose, whether, upon the true construction since cut down. And in this state of circumstances the use of the defendant, Henry William Marker of the deed of the 11th October, 1844, the timber the present bill has been filed by Thomas Joh October 1844, against Henry William for life, without impeachment of waste, save as afore-made subject to the trusts of the term, was not pri- Marker, Richard Marker, and John Marker, the said, with remainder to the use of Henry Williammarily liable for the three several sums of 10,0007. two Putt Marker (son of the defendant, Henry William secured thereby? and for the purpose of determining for life in remainder, under the settlement Marker, who is since dead without issue) for life, this question a bill was filed in this Court in the of without impeachment of waste, save as aforesaid, name of the now infant plaintiff, Richard Marker, Marker, the tenant in life for possession under the with remainder to the first and other sons of Henry by Richard John Marker, his next friend, and de- same settlement, Kekewich and Pulman, as trustees William Putt Marker, successively in tail male, with murrers were put in to the bill. These demurrers of the term, and George Townsend Smith, and remainder to the use of the second and other sons of were allowed by the Vice-Chancellor Wigram, before Margaret Francis, his wife, as interested under the Henry William Marker successively in tail male, whom they were argued, and who, as I collect, inti- trusts of the term in the 10,000l. thereby secured for are not timber estates; that they consist of a with remainder to the use of the plaintiff, Thomas mated anopinion that the estate comprised in the term, the benefit of Mrs. Smith. The bill states the setJohn Marker for life, without impeachment of waste, and not the timber made subject to the trusts of the tlement of October 1844, and sets forth in detail the save as aforesaid, with remainder to the use of the will, was the primary fund for the payment of the trusts of the term. It alleges that the settled estates plaintiff, Richard Marker, eldest son of the plaintiff, sums of 10,000l. But this suit appears to have reThomas John Marker, for life, without impeachment lated exclusively to the rights of the parties to the mansion-house, with extensive buildings, offices, of waste, save as aforesaid, with remainder to the property made subject to the trusts of the term, and and pleasure-grounds thereto attached, suitable for use of the first and other sons of the plaintiff, not to the extent of the property comprised within the residence of the owner of the estates, and used Richard Marker, in tail male, with remainder to the the term, and is, therefore, immaterial to the question as such; of farms and lands let to tenants; of a a nor as tenants V. C. TURNER'S COURT. comparatively small portion of wood-land; and that for many years previously to the estates being put into settlement by Margaretta Marker, the timber growing thereon has been carefully preserved by the owners of the estates, and allowed to remain uncut; and that there was at the date of the settlement, and at the death of Margaretta Marker, and that there now is, standing and growing on the estates, a large quantity of timber of full and ripe growth, and much more than is usual on estates of a like description. It then states the sale of the timber under which the 1,9001. was raised, and the sale of the 700 oak and 100 ash trees on the 31st of December last. With reference to these trees, it charges that the principal portion of the trees so sold were standing in a wood near the mansion-house, and that the rest thereof were standing or growing in the hedge-rows, or on the open lands on the said estate, and that some of the said trees were standing and growing within 200 yards of the mansion-house; and that all the said trees so sold were ornamental to the mansionhouse and grounds, and the views and prospects of the same, and ought to have been preserved as such, and that a great part thereof afforded protection and shelter to the mansionhouse, and offices, and the pleasure-grounds of the same, and ought to have been preserved on that account. It further charges that since the sale the defendant, Henry William Marker, has permitted the purchasers of the ash trees to enter upon the estate and cut and fell those trees; that he has received the price thereof from the purchasers and applied the same to his own use, or in satisfaction of the moneys directed to be levied and raised. It also charges that if the 700 oak trees are allowed to be cut down, the mansion-house and the offices and buildings attached thereto will be deprived of the protection and shelter afforded thereby, which ought to be preserved; and the beauty of the same, and the pleasure-grounds thereof, and the scenery, vistas, views, and prospects of the same will be greatly impaired; and that irreparable danger, spoil, destruction, and injury will be occasioned and committed to and upon the estates, and grievous wrong and injury done to the plaintiffs as the parties in remainder entitled to the estates after the defendant, Henry William Marker; and it prays that the defendant, Henry William Marker, may be restrained by the order and injunction of this Court from cutting down or felling, or permitting to be cut down and felled, the 700 oak trees, or any other timber growing on the estate which affords or gives protection, shelter, or ornament to Combe-house aforesaid, or the outbuildings or offices thereof, or the pleasure grounds attached thereto, or any of the views and prospects of the same. Notice of motion for the injunction having been given before Lord Cranworth, and the motion having been transferred to me by the order of the Lord Chancellor, the question I have to consider is, whether the injunction ought to be granted as to all or any part of the timber, and if granted at all, whether upon any and what terms. Upon the argument of the motion before me several points were urged upon the part of the defendant, Henry William Marker, which do not involve the substantial merits of the case; and it may be convenient, in the first instance, to refer to those points. It was contended, on the part of this defendant, that the conduct of the parties, apart from any question of acquiescence on their part, precluded them from all title to the injunction; that having been parties to the suit instituted by the trustees in which the timber in question was alleged not to be ornamental, they could not be permitted by the present bill to assert the right to it, as being ornamental. But nothing further appears by the affidavits upon this subject than that Mr. Gidley, the solicitor for the trustees, the plaintiffs in that suit, acted also as solicitor for the present plaintiffs, as defendants in that suit. It would, I think, be going much too far to hold that defendants, and particularly the present defendants, can be in any manner bound by the allegations of the bill upon the mere ground that they were represented in the suit by the same solicitor, under whose instructions the bill was filed. It does not even appear that the plaintiff, Thomas John Marker, appeared upon the motion in this suit; and the fact, which is undoubtedly proved, that Thomas John Marker interfered to impede the sale, does not appear to me to strengthen this part of the case. Another objection to the motion was that there had been acquiescence on the part of plaintiff, Thomas John Marker, and that acquiescence on the part of one of several plaintiffs, precludes the interference of the Court upon interlocutory applications as much &s upon decree. I think the defendant's argument apon this subject is well founded; and that if a case of acquiescence on the part of the plaintiff Thomas John Marker, were established, it would be a sufficient answer to the motion. In a case before Lord Cottenham, when Master of the Rolls, where a bill was filed by several plaintiffs, some of whom were infants, against an executor for the purpose of setting aside a release, and compelling him to account for money alleged to have been improperly withheld ecuting a trust, or enforcing an injunction to pre- JUNE 28, 1851.] V. C. TURNER'S COURT. THE LAW TIMES. QUEEN'S BENCH. Common Law Courts. COURT OF QUEEN'S BENCH. Wednesday, June 4. goods to be delivered from time to time under the And if the defendant, Henry but I think the same principle which applies to the Marker, may incur or sustain, by reason of his being case of charities, or rather of benevolent disposi- prevented from completing the sale of the 500 oaks, tions, applies also to this. You have no standard; or any of them." you cannot tell what, by any possibility, will be William Marker, desires it, I will add a reference to rather more improvement than otherwise to the the Master to inquire whether any, and which of the adjoining property; nor can you otherwise tell me 500 oak trees, or any, and what other trees standing the meaning of keeping a garden in neat and orna-and growing in the three woods, can be cut without mental order. These being the views which I enter-impairing the beauty of the place, as it stood at the tertain of the case, and the question now being time of the execution of the settlement of the 11th whether I am to permit acts to be done by which of October, 1844. they would be wholly frustrated, and the power of the Court to deal with them at the hearing of the cause be defeated, I think it is my duty to some extent to interfere by injunction. I think, however, that no case whatever is made out as to the 200 oaks not being in the woods; there is nothing whatever to shew that any of them were planted or left standing for ornament or shelter, nor is there any evidence that any of them are in fact ornamental within the provisions of the deed, except as to the eleven oaks above the orchard, and the five on the road from the vicarage, and as to these, I think the case fails. I am of opinion, therefore, that as to these 200 trees the injunction ought to be refused. With respect to the 500 oaks in the woods, however, I think the case widely different. These woods are in immediate proximity to the mansion-house. The settlor in the prodeed refers to timber ornamental to the mansionhouse and pleasure-grounds, and the views and spects of the same, and there does not appear to be any evidence of there being any timber upon the estate which could fall within that description, other than the timber in these woods. The settlor lived for nearly two years after the execution of the settlement, and never cut any timber in these woods, although it is clear that they were crowded with timber, and here the estate was unimpeachable of waste, except as to ornamental timber. These considerations far outweigh, in my mind, the evidence on the part of the defendant, Henry William Marker. I cannot place much reliance on such of the affidavits on his part as state simply the fact that the woods were not planted or left standing for ornament or shelter, without assigning any reason for that conclusion, or much more reliance on such of the affidavits on his part as ground the conclusion on the existence of stools or stumps, without information as to the circumstance under which those trees were cut down. Nor can I rely on the case of the tenants for life, whose estates were impeachable of waste, or on the statement that the settlor intended to cut down timber in those woods, no such act having been done by her, and the statement having been made after the execution of the deed by which the property had become bound by the trust. I should have felt it right, therefore, to interfere as to these 500 oaks, even if the question had rested simply upon the point whether they were left standing for shelter or ornament; but beyond this I think it clear upon the evidence that they are, in fact, ornamental within the meaning of the deed, and I am perfectly satisfied upon the evidence that they cannot be cut down without impairing the beauty of the place. I am of opinion, therefore, the injunction must go as to the 500 oaks, and I think it will be proper to extend it to other timber in the same woods, but no further. It must be borne in mind, however, that possibly the plaintiff's case may not ultimately be established; and I must require the plaintiff, Thomas John Marker, therefore, to give security, as in Wombwell v. Bellasyse, and upon the same principle I think the security must be extended to any loss or damage the defendant, Henry William Marker, may incur or sustain by reason of his being prevented from completing the sale of the 500 oaks or any of them; and if the defendant, Henry William Marker, desire it, I will add a reference to the Master to inquire whether any and which of the 500 oak trees, or any and what other trees standing and growing in the three woods, can be cut without impairing the beauty of the place as it stood at the time of the execution of the settlement of the 11th of I offer that inquiry with this October, 1844. view, that the report upon the inquiry might come on with the cause at the hearing of it, and then if the Court shall be of opinion, that under the very particular terms of this trust, the true result is that the timber is to be protected to the extent merely of preserving enough of ornamental timber to keep up the beauty of the place, that then the Court would be at once in a position to relieve the parties from the difficulty of an injunction, by deIt is for the claring what trees might be cut down. defendant to consider whether he desires to have I offer it on the present occaIn order that we that inquiry or not. sion with the view I have stated. may not have discussions on minutes, I am anxious to get the order, which is to be drawn up, perfectly I refuse the injunction as to the 200 understood. trees, and I grant the injunction as to the 500 trees, and any other trees standing in these woods, following the terms of the order in Wombwell v. Bellasyse, as to the security, and adding to those terms the words which I have mentioned, "of any loss or damage which the defendant, Henry William Held, no misdirection. QUEEN'S BENCH. is necessary in such a case, is to apply to the breach Macaulay and S. C. Denison, contrà.-1. It was assumed in the learned judge's charge that what was [Lord CAMPBELL, C. J.-The learned judge advised done by the engineer was done by the company. the jury to consider the acts of the engineer as the acts of the company; and I certainly should have given the same advice; but he left the facts to the jury as evidence of authority. There was no misdirection in point of law.] The jury, of course, could not help adopting the advice of the judge, and there was no ground for presuming authority. The engineer stated that he had no authority from the company to act in the matter except under the contract, and this was not a trivial matter with regard to which the company could constitute an agent unless by instrument under seal. (The Mayor of Ludlow v. Charlton, 6 M. & W. 815; Paine v. The Strand Union, 8 Q.B. Rep. 326; Beverley v. Lincoln Gas Company, 6 Ad. & Ell. 829.) [COLERIDGE, J.— The engineer only said that he had no positive C.J.-The management was left to him; he repreorders to restrict the amount. Lord CAMPBELL, like a case where there is any general course of busisented the company in the matter.] This is not ness. The engineer is employed in constructing the line; and by deed he has a specific authority to do certain things, beyond which his authority is not to be presumed. (Cox v. The Midland Railway Company, 3 Ex. Rep. 268; Ridley v. The Plymouth 2. The delivery of the chairs being a condition preGrinding and Baking Company, 2 Ex. Rep. 717.) cedent to the recovery of the price, the plaintiff must This was an action of covenant for breach of a prove something equivalent to delivery; here he sets "Condition," L. 6, M. 5; contract under seal, whereby the plaintiffs agreed to up a prevention or discharge; but the prevention, to make, according to specification, and to deliver, be équivalent to delivery, must be an actual within certain months and at certain places, various physical prevention. (West v. Blakeway, cited quantities of railway chairs, according to the direc-suprà; Com. Dig. tion of the company's engineer; and the declaration Fraunces's case, 8 Rep. 91 b.) [COLERIDGE, J.alleged, that though the plaintiffs were always ready Must not the question of prevention depend upon and willing to execute their proposal, according to the circumstances of the case? Suppose the defendthe specification, &c. yet the defendants, after ac- ant threatened the plaintiff to blow out his brains if cepting part, refused to accept and prevented and he attempted to deliver the goods, that would not be Pleas.-1. That the plaintiffs were not ready and that the plaintiff would still be bound to tender the discharged the plaintiffs from delivering the residue. a physical prevention, yet it could hardly be said he must shew a legal discharge (Brymer v. The willing to execute their proposal according to the goods.] That is a very extreme case; and such a specification, &c. 2. That the defendants did not threat, if made, would probably not be carried into The Companies refuse to accept, nor did they prevent or discharge execution. If the plaintiff relies upon a discharge, Issue was taken upon those pleas; and at the trial, Thames Haven Dock and Railway Company, 2 the plaintiffs from delivering the residue. before Coleridge, J. at the last assizes for the county Ex. Rep. 549); and as that is a corporate act, it of Nottingham, a verdict was found for the plaintiffs, must be done under seal, or at least by some person or committees, does not apply to this. This declaradamages 1,8001. It appeared that for some time having an authority under seal. after the execution of the contract, the plaintiffs Clauses Consolidation Act, which provides for the made and delivered railway chairs, which were ac-making of parol contracts by the board of directors cepted and used by the defendants; but after several requests to deliver slowly, the engineer of the com- tion is founded on the contract as subsisting; and pany in December, 1848, stopped altogether any therefore the performance of a condition precedent further delivery by giving the plaintiffs notice that the must be shewn. The plaintiffs might have treated company had abandoned the making of part of their the defendants' refusal to accept as a rescission of line, and could not take the residue of the chairs. the contract, and then have sued upon a quantum After that no more chairs were made or tendered. meruit for what he had done in relation to the When the further delivery was stopped only 350 contract. (Planché v. Colburn, 8 Bing. 14.) The tons of chairs would have remained to be delivered, intimation of an intention to refuse the goods is if the full quantities had been regularly delivered either a rescinding of the contract, or it is nothing month by month, according to the contract; but at all; it leaves the contract as it was, and then, from the commencement the deliveries had taken unless there is a tender, the plaintiff cannot recover, place, without reference to the particular stipula- according to Philpotts v. Evans and Ripley v. 3. The damages are excessive, tions of the contract as to time and quantity. Under McClure. Readiness and willingness to complete also referred to.) these circumstances a rule had been obtained for a the contract involves the ability to do so; and the new trial, on the ground of misdirection, that the plaintiffs were not able to deliver chairs which had not verdict was contrary to the evidence, and that the been made. (Cook v. Jennings, 7 T. R. 381, was damages were excessive. Tuesday, May 27. Humfrey and Willmore because the plaintiffs are not entitled to recover for a 1. There was no misdirection. The refusal after December 1848, to accept goods which shewed cause. learned judge did not direct the jury that in point ought, by the contract, to have been delivered beof law the company were bound by the acts of the fore. The prevention of delivery cannot apply to Glover v. The London and to quantities and time are not directory merely. Humfrey mentioned Goodman v. Pocock, 19 L.J. engineer; but left the evidence of authority to them. any goods which ought to have been delivered beA company can only break a contract by their ser- fore that prevention took place. The stipulations as vants and agents. North Western Railway Company, 5 Ex. Rep. 66. 2. The evidence is abundantly sufficient to sustain 410, Q.B. in which Patteson, J. speaks of the report the verdict. The prevention and discharge in the of Planché v. Colburn as not satisfactory. | QUEEN'S BENCH. ERLE, J. referred to Elderton v. Emmens, 6 C. JUDGMENT. Lord CAMPBELL, C.J. now delivered the judgment of the Court(a).—We are of opinion that the verdict found for the plaintiffs ought not to be disturbed. As to the supposed misdirection, the learned judge at the trial did not direct the jury that in point of law the engineer had authority to bind the company, but only left it to the jury to consider whether in point of fact the company, by their mode of deal ing, had authorised and sanctioned his agreements. His lordship intimated that he thought the evidence was strong to shew that they had done so, but that it was for the jury to give the evidence its due weight. The objection of misdirection therefore fails. We have then to consider whether the plaintiffs were entitled to a verdict on the issue, whether they were ready and willing to execute and perform the said contract according to the said conditions and stipulations in manner and form, &c. and on the issue whether the defendants did refuse to accept or receive the residue of the chairs, or prevent or discharge the plaintiffs from supplying the said residue, and from the further execution and performance of the said contract. It is not denied that if the defendants would have regularly accepted and paid for the chairs the plaintiffs would have gone on regularly making and delivering them according to the contract. The objection is, that although the plaintiffs were desirous that the contract should be fully performed, yet, after receiving the notice that the company did not wish to have any more chairs, and would not accept any more, they ceased to make any more; insomuch that the residue which the company are alleged to have refused to accept never were this case the damages are not excessive, as the jury Saturday, June 7. one sense of the word, this is true. A discharge is sometimes used as equivalent to a release, which must be under seal. (Brymer v. The Thames Haven Dock Company, 2 Ex. 549.) But we conceive that in the allegation traversed by the last plea, discharge means only prevent, and that the act of the defendants was the cause of the residue not being delivered, and the contract not being further executed or performed. Taking the language employed in its natural and reasonable sense, there was abundant evidence to support the finding of the last issue for the plaintiffs. It is averred, however, that there are express authorities to shew that there could be no readiness and willingness to perform the contract unless all the chairs were finished and tendered; that to prevent must be by positive physical obstruction; and that there can be no discharging unless by instrument under seal. The first case relied on was that of West v. Blakeway, 2 M. & G. 729, in which an action being brought by lessor At the Quarter Sessions for the county of Berks, against lessee, on a covenant to yield up at the ex- holden on the 3rd of April, 1840, an order, subsepiration of the term all erections and improvements quently made a rule of this Court, was made, whereset up or made during the term, it was held to by a rate or assessment for the relief of the poor of be a bad plea that there was a subsequent parole the parish of Tilehurst, and fifty-two other assessagreement between the parties, that if the lessee ments for the relief of the poor in fifty-two other would erect a greenhouse he should be at parishes, were respectively confirmed on appeal, subliberty to pull it down and remove it. But this ject to the opinion of this Court on an award in the merely illustrates the well-known rule that a nature of a special case. The material part of the covenant under seal cannot be varied by parole award was as follows:-The Great Western Railway mine quo ligatur." "Unum quidque ligamen dissolvitur eodem liga- Company are assessed to the relief of the poor of the That has no application to a parish of Tilehurst by a certain rate made the 20th case where the covenantor is prevented from per- day of April, 1849, in respect of land occupied by forming the covenant by the covenantee. Roll's them as a portion of the line of the said railway, Abridg. 453, and in Viner's Abridg. 66 ' Condition,' being part of a branch of the said railway M.C. will be found various instances of a covenant from Reading to Hungerford, called "The Berks being discharged without deed by the act of the and Hants Railway.' The Reading, Newbury, made. The defendants contended that as the covenantee. The next case relied on by the de. and Hungerford branch of the Great Western plaintiffs did not make and tender the residue fendants' counsel was Philpotts v. Evans, 5 M. & W. Railway is 254 miles in length. It was origiof the chairs they cannot be said to have been 475. That was an action of covenant for not accept nally projected by certain persons incorporated ready and willing to perform the contract; ing a quantity of wheat sold early in January 1839, under stat. 8 & 9 Vict. c. 40, by the name of "The that the defendants cannot be charged with a breach by the plaintiffs, at Gloucester, "to be delivered at Berks and Hants Railway Company." The 48th of it; that after the notice from the defendants, Birmingham as soon as the vessel could be obtained section of the last-mentioned statute enabled the which in truth amounted to a declaration that they for the carriage thereof." On the 25th of March Great Western Railway Company to purchase the had broken and henceforward renounced the con- the defendant gave notice to the plaintiff that he said undertaking. By virtue of the above provisions tract; the plaintiffs, if they wished to have any re- would not accept the wheat if it were delivered. It the Great Western Railway Company became the dress, were bound to buy the requisite quantity of was then on its way by canal to Birmingham; and proprietors of the said Berks and Hants Railway, the peculiar sort of iron suited for these railway on its arrival there, the defendant was requested to and thereupon by a subsequent Act, 9 Viet c. 14, it chairs, to make the whole of them according to the accept it, but he refused to do so. The only ques- was enacted that the same should become thenceforth pattern, with the name of the company upon them, tion at the trial was as to the time with respect to part of the Great Western Railway. The Berks and and to bring them to the appointed places of delivery, which the damages were to be calculated. The Hants Railway was constructed at the costs of the and tender them to the defendants, who, from in-market having continued to fall from the date of the appellants, and on its completion in the year 1848 was solvency, had abandoned the completion of the line, contract till the bringing of the action, the defendant opened for traffic as a branch of the Great Western for which the chairs were intended, desiring that no sought to take advantage of his own wrong, and to Railway, and has been, ever since its completion, more chairs might be made, and declaring in effect calculate the damages according to the price in the worked by the appellants as part of the entire railthat no more should be accepted or paid for. We market on the 26th of January, when he gave notice way known by the name of the Great Western railare of opinion, however, that the jury were fully that he intended to break the bargain; but it was way, but a certain number of engines and carriages justified upon the evidence in finding that the plain- very properly held, that the plaintiffs were entitled are appropriated to it, and a certain number of tiffs were ready and willing to perform the contract, to damages according to the market price when the officers and servants are employed exclusively on although they never made and tendered the residue wheat was tendered to the defendant for acceptance. that branch. No separate accounts of receipts and of the chairs. In common sense the meaning of The Court cannot be considered as having decided expenditure in respect of the branch is kept by the such an averment of readiness and willingness must that if the notice had been received by the plaintiffs appellants, but such receipts and expenditure are be, that the non-completion of the contract was not before the wheat was sent off from Gloucester, the included in the general half-yearly revenue acthe fault of the plaintiffs, and that they were disposed plaintiff's might not at their pleasure have treated it counts laid before the proprietors, and no separate and able to complete it, if it had not been renounced as a breach of the contract, and commenced an annual account in abstract shewing the total by the defendants. What more can reasonably be action against the defendant for not accepting receipts and expenditure in respect of the branch required by the parties for whom the goods are to be it without tendering it to him at Birmingham. is prepared by the appellants, so manufactured? If, having accepted a part, they are The most recent case cited by the defendants' furnished to the overseers of the poor of the unable to pay for the residue, and have resolved not counsel was Ripley v. Maclure, 4 Ex. 345. This several parishes through which the said branch to accept them, no benefit can accrue to them from case is very complicated in its circumstances; but passes in conformity with the provisions of a useless waste of materials and labour, which might the second point decided in it is the only one appli- statute 8 & 9 Vict. c. 20. The branch line could possibly enhance the amount of damages to be cable to the question which we have to consider. be worked (as originally intended to be) as a sepaawarded against them. Upon the last issue was There being an executory contract, whereby the rate railway under independent management, but there not evidence that the defendants refused to plaintiff agreed to sell, and the defendant to buy, on this would require a larger movable stock, and a accept the residue of the chairs? If they had said, arrival, certain goods to be delivered at Belfast, at a greater expenditure than the company now actually make no more for us, for we will have nothing to certain price, payable on delivery; it was held that employ or bestow on it. The actual expenses of the do with them," was not that refusing to accept or refusal by the defendant, before the arrival of the company are not in the proportion of the actual receive them, according to the contract? But the cargo, to perform the contract, was not of itself ne- gross receipts, either on the branch or throughout learned counsel for the defendants laid peculiar stress cessarily a breach of it, but that such refusal, unre- the entire railway, nor are either such gross receipts upon the words, "nor prevent or discharge the tracted, down to and inclusive of the time when the or such expenses at one uniform rate per mile. plaintiffs from supplying the residue of the chairs, defendant was bound to receive the cargo, was evi- The profits of the company are wholly derived from and from the further execution and performance of dently a continuing refusal, and a waiver of the con- the carriage of passengers and goods, and none the contract." We consider the material part of the dition precedent of delivery, so as to render the but the company's engines and carriages run on allegation which the last plea traverses to be defendant liable for the breach of the contract. But the line. The respondents computed the ratethat the defendants refused to receive the residue of in the case at bar the refusal never was retracted, able value of such portion of the said railway the chairs; but assuming that the whole must and therefore there was a continuing breach down as follows:-They estimated the rent at which the be proved, we think that there is evidence to the time when this action was commenced. Upon entire Great Western Railway trunks and branches, to shew that the defendants did prevent and dis- the whole we think we are justified on principle, and with its appurtenances, including stations, which charge the plaintiff from supplying the residue of without trenching on any former decision, in holding might reasonably be expected to let from year to the chairs, and from the further execution of the that when there is an executory contract, for the year, free of all usual tenants' rates and taxes, and contract. It is contended that "prevent" bere manufacture and supply of goods from time to time, tithe commutation rent-charge, and deducted theremust mean an obstruction by physical force; and in to be paid for after delivery, if the purchaser, hav- from the probable average annual costs of repairs, answer to a question from the Court, we were told it ing accepted and paid for a portion of the goods insurance, and other expenses necessary to maintain would not be a preventing of the delivery of the contracted for, gives notice to the vendor not to ma. the said railway in a state to command such rent, goods if the purchaser were to write in a letter to nufacture any more, as he has no occasion for them, and such rent for the purpose of the present award the person who ought to supply them-"should you and will not accept or pay for them, the vendor hav-is to be taken to be such portion of the net annual come to my house to deliver them, I will blow your ing been desirous and able to complete the contract, profits of the company, after making all proper debrains out.' But may I not reasonably say, that I he may, without manufacturing and tendering the ductions in respect of tenants' profits, including the was prevented from completing a contract by being rest of the goods, maintain an action against the profit of trade, as a tenant from year to year might desired not to complete it? Are there no means of purchaser for breach of the contract, and that he is be reasonably expected to give for the right to preventing an act from being done except physical entitled to a verdict on pleas traversing allegations occupy such railway as a carrier. The mode in force or brute violence? Again, we are told there that he was ready and willing to perform the con- which such estimated rental was calculated is as can be no discharge by a corporation unless by a tract, that the defendant refused to accept the re- follows:-The respondents ascertained the actual deed under the corporate seal. Of a discharge, in sidue of the goods, and that he prevented and dis- annual receipts of the company, occupying as (a) Lord Campbell, C.J. Patteson, J. Coleridge, J. and charged the plaintiff from manufacturing and deli- carriers the entire Great Western Railway, trank Erle, J. vering them. We are likewise of opinion, that in and branches, from the carriage of passengers and a as to be JUNE 28, 1851.] QUEEN'S BENCH. THE LAW TIMES. QUEEN'S BENCH. QUEEN'S BENCH. goods over the said railway between the 1st January, above) of general expenses of central superin- c. 96, enacts that a rate shall be assessed "upon an 1849, and the 30th December in the same year. tendence, printing, and advertising per mile; 4, estimate of the net annual value of the several This statutory rule was easily apFrom this they deducted the actual annual expendi- annual repair of carriages used on the branch per hereditaments rated thereunto, that is to say, of the ture of the company during the same period, under mile; 5, actual cost of running engines on the rent at which the same might reasonably be exthe following heads-1, maintenance of the way, branch per mile; 6, rates and taxes; 7, Government pected to let from year to year, free from all usual stations, and works; 2, locomotive account; duty; 8, annual rateable value of stations on the tenants' rates and taxes, and tithe commutation enginemen and firemen, waste, oil, tallow, and fire- branch only at per mile; 8, estimated sum per rentcharge." wood, labourers and cleaners, cost of superintend-mile per annum for renewal and reproduction of plicable to all the property which the Legislature ence, including clerks, firemen, and office charges, rails and framework of the branch railway over had in its contemplation when the rule was stated, repairs of engines and tenders, comprising wages, and above the actual cost of maintenance of way but it is not applicable to a railway extending materials, &c. &c. coke and coal consumed by and annual repairs specified above, No. 1; 10, many miles through different parishes and counties, locomotive engines, rates, taxes, lighting and gas, estimated sum per mile for renewal and repro- having a trunk line and various branches, the repairs of buildings, turn-tables, &c.; 3, carrying duction of moveable stock employed on the said traffic through which varies in all its parts, and account, comprising the expenses of guards, police, branch over and above the annual repairs specified the expenses are different in different parts, and in and inspectors, porters' clothing, carriage and above; articles 9 and 10 are not annual expenses some parts bear no relative proportion to the earnwaggon repairs, stores, consumed stores, disburse- actually incurred and paid, but the estimated an- ings. We are required to determine how a rate ments, lighting and gas at stations; 4, general nual sums considered sufficient to form a fund for should be assessed in a parish without any station charges, including superintendence and clerks, sta- the complete renewal and reproduction when need- existing in that parish, the traffic being small, the tionery account, disbursements, and tickets, sundry ful of the rails and timber from work, and also of outgoings large, large from the nature of the place office expenses, advertising, postage, &c. travelling the engines and carriages called in the above list of passed through, and we are directed to consider the expenses, &c. loss on light gold, law charges, deductions "moveable stock." The appellants do rent for which this section of the railway might reasonrevenue to form a distinct fund for either of these rates and taxes, and to the commutation rentcharge," medical expenses; 5, disbursements for repairs not now specifically appropriate any part of their ably be expected to let, "free from the usual tenant's and alterations of stations and insurance; 6, compensation for accidents, returns, and allowances; purposes, but they retain out of it enough to form and the only guide for us as to the deductions we have on gross receipts from a reserved fund for all contingencies of whatever to make is the annual cost of repairs and insurance, 7, government duties It exclusively within the parish, or of locomotive enpassengers; 8, rates and taxes; 9, general offices kind. Since the opening of the railway a large without any intimation as to the traffic or of the costs for direction, salaries, and office expenses; 10, sum was applied to the renewal of a part of the of the means of carrying on the expense of tunnels law-stationer's accounts for copying. The above railway which had been worn out, and the expense and embankments, and standing engines employed deductions comprise the actual annual trade was paid out of the capital and not of revenue. expenditure of the company, and also their actual wore out in a few years because lighter materials gines on the whole line, or any knowledge of the annual expenditure from the 1st of January, 1849, had been used than have since been employed general expenses of the directors, stations, and poWith respect to rather than as judges, and we shall be making to the 30th of December following, necessary to throughout the railway. Since that time all need- lice, and the management of the whole concern. If maintain the railway and its appurtenances, in ful repairs and renewals of the rails, timber, and we settle the rate without information on all complete repair, and the moveable stock of the frame work have been defrayed year by year as these considerations, we shall do so as legislators company, including engines, tenders, and carriages they occurred from the revenue. of all descriptions in effective working order and the moveable stock a large fund was originally ap- rather than expounding the law. At all events, we condition. The difference between the actual propriated to the renewal, but such fund has been must proceed on the absurd supposition, that we can annual receipts of the company, and such deduc- since considered unnecessary, and the expenses of tell the rental at which a person would take on rent tions, the respondents considered to be the net reparation and renewal have been paid out of the this portion of the railway passing through a single annual profits of the company as such occupiers of annual revenue, and this has hitherto been found parish, and while we have not the means to make the entire railway. They then assumed an amount sufficient to keep it in an efficient state, but not to such deductions as would enable us at all to know of capital invested in the entire moveable stock em- maintain it in a state to sell for its cost price if how it would be likely to let to a tenant from year ployed in the trade, which for the purpose of the valued. The appellants claimed further to deduct to year. Without some alterations of the law, we present rate is to be taken to be correct, and de- an annual sum for interest on capital and tenants' foresee that if we should give judgment (which we on the capital actually and necessarily invested in ability), it will occasion much trouble, litigation, ducted from such net annual value a per centage on profit, including those of trade, being a per centage may be obliged to do according to the best of our such capital in respect of interest and tenants' profits, including the profits of trade, which for the the moveable stock employed in the branch railway. and expense, and must still raise questions between purpose of this rate is to be taken as the proper This also they proposed to distribute like other de- parishes and railway companies. In this case itself per centage in that behalf. The residue they con- ductions by a mileage proportion over the branch. three appeals have been consolidated, which might sidered to represent the net annual value of the Assuming the above deductions to be properly allow- all have been argued separately; and we feel that entire Great Western Railway, trunk and branches, able in point of law, they greatly exceed the receipts, there is no decision we could now pronounce that with its appurtenances, including the stations, and the branch railway is not in itself profitable, would put an end to possible litigation and endless within the meaning of the Parochial Assessment nor would the occupation of it alone by any tenant disputes. We do not say what will be done by Act. They further deducted the annual value of the be a beneficial one, and the same would be the re- Parliament, but we make no doubt that a rule might stations, which are rated apart from the line of rail- sult even if articles 9 and 10 be disallowed and be laid down as to the rating of this novel and imway. Having thus ascertained the rateable value omitted, but it is profitable to the company, as pro- portant species of property, both simple and equitof the whole railway, minus the stations, they prietors of the entire Great Western Railway, by able, which would prevent all litigation on the ascertained the gross actual annual receipts of the reason of the increased traffic brought on the main subject. Under these circumstances we shall reserve company in respect of each mile, and portion of a line, and the increased receipts upon that line our judgment for the present. mile of railway in their parish, and they assessed between London and the western termini of it. the appellants in respect of the said two miles and a If the Court shall be of opinion that the principle half of railway in their parish in the ratio which upon which the assessment has been made and such annual receipts bore to the gross actual an-apportioned by the respondents is correct, and nual receipts of the company in respect of the entire Great Western Railway, trunk and branches, the rateable value of a mile of railway in the respondent parish being calculated in the same proportion to the rateable value of the whole line of railway, exclusive of the stations, as the gross actual annual receipts in respect of such mile bore to the total of such actual annual receipts of the company. The appellants contended, that assuming the rateable value of the whole railway to be the right basis of the rate in each parish, and that such rateable value had been correctly ascertained by the respondents, it ought to be distributed along the line, and apportioned on each part of it in the ratio of the net earnings or net profits accruing to the appellants in respect of that part, and not in the ratio of the gross receipts, and for the purpose of supplying to the Court of Quarter Sessions the means They took the of amending the rate, they estimated the rateable value in the following manner: gross receipts per mile per annum in the respondents' parish, exactly as the respondents had done, and they deducted from these the actual expenses of each mile ascertained or estimated. In order to do this, they ascertained the actual expenses incurred on the branch alone, and where those expenses were common to the entire branch, they divided such expenses by the number of miles in the branch, and they considered the result to be the expense of each mile in the branch. A small portion of the general expenses of the entire railway, being those of central superintendence, printing, and advertising, were apportioned on the branch in the ration of the business or traffic upon it, and such portion was then sub-divided as before on the mileage principle. The following are the expenses and deductions estimated as above, and claimed by the appellants:-1, maintenance of way, including actual annual repairs of way, rails, fences, &c. at per mile; 2, salaries of servants, police, &c. on the branch per mile; 3, lighting and office expenses on the branch, and share (apportioned as that all proper deductions and allowances have Judgment postponed. Tuesday, June 10. MASSEY . GOODALL. produced on the farm-Breach. tract by a tenant not to sell straw produced on the farm, it is not necessary to aver that the Landlord and tenant-Agreement not to sell straw breach occurred during the continuance of the tenancy: Erle, J. dissentiente. In a declaration by a landlord for breach of a con Assumpsit, on a promise to pay penalties upon the breach of an agreement. The declaration alleged that the defendant became tenant to the plaintiff of a farm from year to year, upon the following amongst other stipulations, viz. that the defendant should not sell hay, straw, &c. grown or produced on the farm during the tenancy, without the written licence and consent of the plaintiff. Breach, that the defendant did sell hay, straw, &c. grown on the farm during the last year of the tenancy, without the written license of the plaintiff. Plea. That the defendant did not, during the Demurrer thereto. Bayley appeared in support of the demurrer; but continuance of the tenancy, sell, &c. the Court called upon Cowling, contrà.-The plea is good, and the dethat the breach of agreement was during the tenancy. claration bad. The declaration ought to have averred That is not expressed in the contract, but it is implied by law. This is an agreement on an executed consideration; and as no request is averred in the declaration, the only effectual promise must be that implied by law; and the defendant is only liable to penalties for selling during the term. Lord CAMPBELL, C. J.-I think that the plaintiff is entitled to our judgment. The declaration sets and I think that the breach is well assigned, because out a positive unqualified undertaking not to sell; it is within both the terms and the meaning of that undertaking. If the undertaking was limited to the continuance of the tenancy, then the tenant might hoard up the produce of the farm during the term, and the day after it expired, sell it all, without being guilty of any breach of his agreement. |