sion or refusal to carry on any one must be the subject of a cross action. This objection is founded on one of the rules for determining when covenants are dependent on each other; which is laid down in Boone v. Eyre (a), and followed in Campbell v. Jones (b) and other cases collected in the note to 1 Wms. Saund. 320 c. That rule is, that when a covenant goes to part of the consideration on both sides, that is, forms a part of the consideration on the plaintiff's side for the defendant's covenant on the other, and a breach of such covenant may be paid for in damages, and the whole of the remaining consideration has been had by the defendant, the covenant is independent, and the performance of it is not a condition precedent. "The reason of the decision in these cases is," as is observed by the learned editor, "that where a person has received a part of the consideration for which he entered into the agreement, it would be unjust that, because he had not had the whole, he should therefore be permitted to enjoy that part without either paying or doing anything for it. Therefore the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damages he may have sustained in not having received the whole consideration." It is remarkable that, according to this rule, the construction of the instrument may be varied by matter ex post facto; and that which is a condition precedent when the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less: as in the cases referred to, the defendant, in the first, might have objected to the transfer, if the plaintiff had no good title to the negroes and refused to pay; in the second, he might have objected to the payment if the plaintiff had refused to transfer the patent, though he had been willing to teach the 1851. ELLEN v. TOPP. 1851. ELLEN V. TOPP. art of bleaching. But this is no objection to the soundness of the rule, which has been much acted upon. But there is often a difficulty in its application to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract; and if, in the case of Boone v. Eyre, two or three negroes had been accepted, and the equity of redemption not conveyed, we do not apprehend that the plaintiff could have recovered the whole stipulated price, and left the defendant to recover damages for the non-conveyance of it. Whether the rule can be applied to the present case has been a matter of great doubt in the minds of some of us: but, after much consideration, we agree that it is not applicable. If this had been an action on a covenant to pay an apprentice fee at the end of the term, and the apprentice had served the whole period, and had had the benefit of instruction as such in two of the trades, it would, we are disposed to think, have been no answer to the action that the plaintiff had discontinued one. But this is an action for not continuing to serve as an apprentice; and although the later services of an apprentice are much more valuable than the early, and are in part a compensation to the master for his instruction in the commencement of the apprenticeship, and so are analogous in some degree to an apprentice fee payable in futuro, yet the immediate cause of action is the breach of the contract to serve, and the obligation to serve depends upon the corresponding obligation to teach as an apprentice; and, if the master is not ready to teach in the very trade which he has stipulated to teach, the apprentice is not bound to serve. To this particular covenant to serve, the relative duty to teach seems to us to be directly a condition precedent; and we are not able to distinguish between the three trades of auctioneer, appraiser, and corn-factor, so as to say that one is more the substantial part of the contract than another. As the plaintiff by his own fault has disabled himself from acting as a master in all the three trades, he has no right to complain of the defendant's son refusing to continue to serve in any. Our judgment will therefore be for the defendant. Judgment for the defendant. 1851. ELLEN 22. TOPP. THE WATERFORD, WEXFORD, WICKLOW, AND DUBLIN RAIL- May 2. By the 22nd section of the Waterford, Wexford, &c. Act, 10 & 11 Vict. c. lxi., it is enacted, that, the sum of 66 so soon as 1,500,0007. shall have been subscribed &c., it shall be lawful for the Comforce all the DEBT-The declaration was in the usual form, for calls payable by the defendant, as a shareholder in the Waterford, Wexford, Wicklow, and Dublin Railway Company. Plea, that, by an Act of Parliament (a) for making a Railway, to be called "the Waterford, Wexford, Wicklow, and Dublin Railway," the plaintiffs were empowered to make calls as therein specified; and the capital was required to be 2,000,000l.; and that, by another Act passed in the 11 Vict., it was enacted, that it should be lawful for the plaintiffs to put in force all the powers of the first-mentioned Act, and of the Acts therein recited-(The Companies Clauses Consolidation Act, 8 & 9 Vict. c. 18, and The Lands Clauses Consolidation Act, 8 & 9 Vict. c. 20,)—as regarded that portion of the said Railway which is situate between the Dublin and Kingstown Railway and Wexford, so soon as the sum of 1,500,000l. had been subscribed. then averred, that that sum had not been bonâ fide sub- 18, and the scribed when the said calls were so made.-Verification. pany to put in powers of the said Act authorising the con struction of the said Railway, and of the Acts viz. the Lands therein recited," Clauses ConsoThe plea 8 & 9 Vict. c. lidation Act, Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, as regards that portion of the said Railway, situate &c.:-Held, that the raising of the sum of 1,500,0007, was not a condition precedent to the power of the Company to make a call, but merely to their right to exercise the compulsory powers given them for taking land, &c. in the construction of the line. (a) 9 & 10 Vict. c. ccviii, 1851. WATERFORD, General demurrer, on the ground that it was not a condition precedent to the right of the Company to make WEXFORD, calls, that the sum of 1,500,000l. should have been subscribed. Joinder in demurrer. WICKLOW, AND V. DALBIAC. Peacock, in support of the demurrer.-The plea is no answer to the action. The question turns on the meaning of the 22nd section of the 10 & 11 Vict. c. lxi., which, after reciting that by the provisions of the Lands Clauses Consolidation Act, 1845, as extended to the Act authorising the construction of the said Waterford, Wexford, Wicklow, and Dublin Railway, it is required that the whole of the capital applicable to the construction of the said Railway, as limited and defined by the last-mentioned Act, shall be subscribed, and a certificate thereof obtained in manner by the said Lands Clauses Consolidation Act directed, before any of the compulsory powers conferred by the said Act authorising the construction of the said Railway, or the Acts therein recited with reference to the purchase of lands, shall be put in force; and after reciting that that portion of the Railway between the Dublin and Kingstown Railway and the town of Wexford, might be constructed with great advantage to the public, before the whole capital required for the formation of the whole line of Railway may have been subscribed;' and after reciting, that it is estimated that, of the capital of 2,000,000l. authorised to be raised by the said Act authorising the construction of the said Railway, the sum of 1,500,000l. would be sufficient to complete so much of the said line as is situate between the said Dublin and Kingstown Railway and the said town of Wexford; and that the sum of 500,000l., the residue of the said sum of 2,000,000l., would be sufficient to complete such portion of the said line as is situate between the town of Enniscorthy and the terminus of the said Railway near the city of Waterford,' enacts, "That when and so soon as the sum 1851. WEXFORD, WICKLOW, AND DUBLIN RAILWAY CO. V. DALBIAC. of 1,500,000l. shall have been subscribed, and a certificate thereof obtained, in manner required by the said Lands WATERFORD, Clauses Consolidation Act with reference to the subscription of the whole of the capital of the Company, it shall be lawful for the said Company to put in force all the powers of the said Act authorising the construction of the said Railway, and of the Acts therein recited, as regards that portion of the said Railway which is situate between the said Dublin and Kingstown Railway;" and the section. then provides that "nothing herein contained shall be held to authorise the said Company to exercise any of the compulsory powers of the said Act, with regard to the execution of that portion of the line of the said Railway which is situate between the said town of Enniscorthy and the termination of the said Railway near Waterford, until the whole of the said capital of 2,000,000l. has been subscribed, and a certificate thereof obtained in manner required by the said Lands Clauses Consolidation Act, 1845." The Company are not disabled by this section from making a call unless the whole of the capital has been subscribed. They are not in a position to exercise the compulsory powers entrusted to them by the Lands Clauses Consolidation Act, (8 & 9 Vict. c. 18, s. 16,) with respect to the taking of land, until the capital is fully paid up; but that is the only restriction imposed upon them by that section. The Court then called upon J. Grant (Welsby with him) in support of the plea.-The words of the 22nd section are, that so soon as the whole of the capital of 1,500,000l. shall have been subscribed, &c., the Company may put in force "all the powers" of the said Acts. It does not state that the Company shall be at liberty to put in force the compulsory powers given by the prior Acts. [Martin, B.-The Act is clearly for the benefit of the Company.] Unless the defendant's construction of VOL. VI. G G EXCH. |