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![handle is hein.slavery/ssactsengr0279 and id is 1 raw text is: DAWES V. HAWKINS
of equity at all. Ranger v. The Great Western Railway Conpany, 5 House of Lords
Cases, 72, and other cases in equity, show that a question of liquidated damages
is always dealt with as a common law question. Of course I except contracts under
seal. Upon the ground, therefore, that the replication is a good legal answer to the
plea, I am of opinion that the plaintiffs are entitled to our judgment.
BYLES, J. I also am of opinion that the replication is good. The original contract
was not one which needed to be in writing; and it might be varied by parol: and it
strikes me, that, though not completely rescinded by the second agreement, the
original agreement is rescinded and altered so far as relates to the liquidated damages.
By the original agreement, the work was to be completed by a time certain. Then
comes another agreement under which further work is to be done to the houses, which
further work both parties well knew could not be done within the time limited. It is
agreed that the work under the old and that under the new agreement shall be done
together, and the whole cannot be done within the time limited, and both parties knew
it. It seems to follow as a necessary consequence from that that the so-called penal
clause in the first agreement is rescinded or repealed by the subsequent parol agreement.
I am riot sure, upon the authorities which have been, referred to, that this stipulation as
to time was capable at law of being waived. If, however, there should be any unforeseen
difficulty in law, the parties undoubtedly have a remedy in equity: and it seems to
me that these plaintiffs have [847] come into court with clean hands. For these
reasons, Iam of opinion that this is a good replication at law; and, as far' as I can see,
I also think it is a good replication upon equitable grounds.
KEATING, J. I also, agreeing with my Lord and my Brother Willes, think the
plaintiffs are entitled to judgment, on the ground that the replication affords a good
legal answer to the plea The defendant in his plea sets out an agreement under
which he claims a certain penalty to have attached for the non-completion of work
thereunder by a certain stipulated day. The answer set up by the plaintiffs in their
replication is in substance this, that their failure to complete the work upon which the
alleged penalty attached, was occasioned by a subsequent agreement which prevented,
and which the defendant knew would prevent, the performance of the original contract
by the day named. I think that is a good answer to the plea.
Judgment for the plaintiffs.
[848] DAWES v. HAWKINS. July 6th, 1860.
(S. C. 29 L. J. C. P. 343; 4 L. T. 288; 7 Jur. N. S. 262. Referred to, Cubitt v. Maxse,
1873, L. R. 8 C. P. 716. Applied, Neill v. Byrne, 1878, 2 L. R. Ir. 289. Dictum
applied, Piggolt v. Goldstraw, 1901, 84 L. T. 96. Discussed, Smith v. Wilson, (1903]
2 I. R. 63.]
There can be no dedication of a way to the public for a limited time, certain or uncertain:
if dedicated at all, it must be dedicated in perpetuity. Neither can the public, by
non-user, release their rights.-An antient highway over a common or down was,
without authority or interference from the owner of the soil, diverted by an adjoining
proprietor, who substituted for it a new road, which was used by the public for
more than twenty years. After the lapse of that period, the original road was
re-opened to the public, and the then owner of the soil over which the substituted
road passed built a wall and planted trees across the road which had been so sub-
stituted.-In an action against the defendant for pulling down the wall and cutting
down the trees :-Held, by Erle, C. J., and Byles, J.,-dissentiente, Williams, .J.,-
that the above facts afforded no reasonable evidence of a dedication of the substituted
road to the public,-the public user thereof being referable to the right of the public
to deviate on to the adjoining land whenever the owner of the soil illegally stops a
highway, or suffers it to become foundrous.
This was an action of trespass for breaking and entering certain land of the
plaintiff, situate in the parish of Whitwell, in the Isle of Wight, and near to a
certain house and premises of the defendant called The Hermitage, and pulling
down, prostrating, and destroying a wall of the plaintiff, and cutting down, damaging,
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8 C. B. (N. S.) 847.](ViewImageLocal?handle=hein.slavery/ssactsengr0279&div=1&collection=&method=preview&ext=.png&size=3)