HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0312 and id is 1 raw text is: JOWETT V. SPENCER
have belonged to him jointly with Lord Glenelg. They were cases in which a devise
or conveyance to two persons jointly, one of whom disclaimed, has been held to vest
the whole estate in the other. But the analogy of those cases is inapplicable, because
the subject dealt with was not a mere personal contract, but an interest in land. Now,
joint obligees or covenantees in personal contracts differ materially from joint-tenants
of estates in land, in respect of their power of dealing with their rights. An interest
in land, whether joint or several, may be transferred by the act of the party; and the
conveyance by a joint-tenant, by release or otherwise, operates on his moiety only; he
may convey it to his co-tenant, or to a stranger; whereas a right to sue on a contract
cannot be conveyed, though it may be extinguished, and a release by one of the joint
parties extinguishes the right of both. It was upon a similar reason, that, in real
actions, a nonsuit of one demandant or plaintiff was not the nonsuit of both, but he
that made default should be summoned and severed; but in personal actions the
nonsuit of one is generally the nonsuit of both: Co. Lit. 139 a. To allow a joint
devisee or grantee &c. of land to vest the whole interest in his co-devisee or grantee,
&c., by refusing to accept the estate, is allowing him to do no more than he could
have done by a release immediately after acceptance; but if a joint covenantee could,
by refusal, enable his co-covenantee to sue alone, he would do that before acceptance,
which he could by no means do after acceptance.
(647] Since, then, the defendant has not incurred any liability to be sued on a
separate contract, and since the plaintiff has not acquired the right to enforce in a
separate action any liability to which the defendant might be subject in a joint action,
it follows, that whether the defendant's original liability be or be not put an end to,
this declaration is bad, and the judgment for the plaintiff ought to be reversed.
Judgment reversed.
Jow~a' v. SPENCER. 1847.-Declaration in covenant stated, that plaintiff, by inden-
ture, granted to defendant all the coals, and mines of coal, under certain land ;
that defendant covenanted to pay the plaintiff, as the price of the coal so granted,
£40 for every statute acre of the said coal which should be found under the said
lands, and, until the said price should be fully paid, to pay plaintiff £40, part of
the said price, in each year, by two equal half-yearly instalments, whether the
whole of an acre of coal should be gotten in every such year, or not. Averment,
that, at the time of the making of the indenture, there were under the said lands
divers, to wit, fourteen acres of coal ; and that divers, to wit, thirteen acres of the
said coal still remained under the said lands, and that £40 for two of the half-
yearly instalments of the said price for the coal aforesaid became due, and still
was in arrear and unpaid, to the plaintiff :-Held, on error in the Exchequer
Chamber, reversing the judgment of the Court of Exchequer, that the finding
of coal was not a condition precedent to the plaintiff's recovering the annual sum
of £40.
[S. C. 17 L. J. Ex. 367.]
In this case, the Court of Exchequer having arrested the judgment (see the report,
15 M. & W. 662), a writ of error was brought, and argued in this Court on the 18th
of June, 1847,(b) by
Hugh Hill (Addison with him) for the plaintiff. The meaning of the covenant
must be determined by the intention of the parties apparent upon the face of the
instrument: Slavers v. Curling (3 Bing. N. C. 355). Adopting that rule of construc-
tion, it is no condition precedent that coal should be found. This is not a mere license
to get coal, but a grant of all the coals, mines, &c., under a certain messuage and lands,
in consideration of the payment of £40 at the periods mentioned. It is evident that
the time of payment was one thing contemplated by the parties as the consideration
for the grant, since the plaintiff has parted with his whole interest in the mines; and
as the deed contains no stipulation [648] requiring the defendant to work them within
a particular period, he might either abstain altogether or for an indefinite number of
years, or work slowly or quickly, at his discretion. The former part of the covenant
(b) Before Lord Denman, C. J., Patteson, J., Coleridge, J., Coltman, J., Cresswell, J.,
Maule, J., Wightman, J., and Erle, J.
1 EYL 647.
275](ViewImageLocal?handle=hein.slavery/ssactsengr0312&div=1&collection=&method=preview&ext=.png&size=3)