Wetherell, Clerk, v Langston
| Jurisdiction | England & Wales |
| Judgment Date | 02 December 1847 |
| Date | 02 December 1847 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 269
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 17 L. J. Ex. 338.
[634] wktherell, Clerk, v. lanohton. Dec. 2, 1847.-If A. covenant with B. & C., their executors, administrators, and assigns, although C. do not execute the deed or assent to the covenant, and afterwards disclaim it by deed, to which A. is no party, B. cannot alone (living O.) sue A. upon the covenant. [S. C. 17 L. J. Ex. 338.] Covenant. The declaration set forth an indenture, dated 30th December, 1842, made between John Mynde Cooke, and Eliza his wife, of the first part; the pkintiff : in error (the defendant below), of the second part; and the defendant in error (the 270 WETHERELL V LANGSTON 1 EX 635 plaintiff below), and Loicl 0-lenelg, of the third p,ut, whereby it was witnessed, that, {or the coneideiations theteiu uientioiied, the defendant below, foi himself, his hens, executors, and admuustiators, covenanted with the plaintiff below and Lord (Jlenelg, then executors, administrators, and assigns, to pay to them a certain sum of money, \n certain instilments, upon ceitain trusts therein mentioned It then set foith ftnother indenture, dated 9th December, 184,!, between the said John My ride Cooke of the nrst part, the pLuntift below of the second part, and John Evans of the third part, by winch the said John Evans was substituted as a trustee of the former settlement, in the place of the plaintiff below The declaration then proceeded to allege, ',hat Lord G-lenelg nevei assented to or ratified the said first-mentioned indenture, and that, ob the 28th Mart h, 1844, by arr indenture then made between Lord dlenelg 6f the one part, and the said John Evans of the other pair., Lurcl (ileuelg disclaimed 3,11 the trusts of the said first-mentioned nrdentuie, and that the defendant below had notice of such disclaimer The declaration stated a breach by the defendant below of the covenant contained in the fust-mentioned indenture, 113. the nonpayment of Gertam instalments due before the commencement of the suit To this declaration, the defendant below demurred specially, assigning for cause, that it did not disclose any light in the plaintiff below to maintain a separate action lor breach of the covenant declared on , but that Lord Glenelg ought to have been joined in the action as a co plaintiff The defendant below joined in demur ler and the Court of [635] Exchequer gave judgment thereon (without argument) for the plaintiff below A writ of error was brought upon that judgment, which vvas irgucd in this Court on the 28th of November, 1846 (a) Watson, for the plaintiff in erior The question in this case, which appears to be One of the first impression, is this whether, the plaintiff below and Lord drlenelg being joint covenantees under the deed of 1842, the plaintiff can, during their jornt Jives, under the circumstances set foith in the declaration, maintain this action of qoverunt alone, without joining his co covenantee It is submitted that he cannot tt is a clear proposition of law, that where a joint covenant is made to two persons, One of them cannot, living the other, sue upon it alone Here the covenant is clearly a joint one What then is the effect of Lord Qlenelg'h non-assent to the covenant 4,ud subsequent disclaimer by deed? The fact strll remains that the defendant cove-giants with the two, reposes confidence in both, and is undei the obligation to perform tis contract with both It cannot be a contract with two, or with one if the other dissents The plaintiff in this case is in truth attempting to introduce into the law a new exception, never before recognised Lord Glenelg may still, notwithstanding All that has been done, assent to arid adopt the covenant Nothing has taken place which is binding upon him, as between him and the defendant Why may he not still come in and sue? It may be said, that, if this action cannot be maintained bv the plaintiff Langston alone, no action at law at all can be brought, because Lord trlenelg will refuse hia name But if he does so, equity will interpose The same argument would apply to a release by one of two joint covenantees There is no instance in the books of an action by one of two joint covenantee.s, living the other That both may sue jointly, [636] although one of them did not seal the deed, is clear from the authorities Clement v Henley, Holl Abr , " Fails," (L(' 2), fa-) iwn v Jeffen/\ Stra 1146, 7 Mod 358; And in Petnu v Bury (3 B &C 353, r) I) &K 152), t was held that all must sue jointly, although all did not seal the deed It is tiue ihe effect of an express refusal to assent to the covenant or disclaimer did not arise n that case Abbott, C J, there says "We are not called upon to consider the effect of an express drsclaimer, renunciation, or refusal by the other covenantees, foi nothing of that kind is alleged Trustees very often assent to a trust without executing the deed which creates it, and they may assent at any tune, and without an express allegation of dissent that will not appear " Bayley, J , says " By the deed in question, James Bury covenanted that his heirs or executors should pay the annuity to three persons It appears on the face of the deed to have been his intention that the money should go into the hands of the three, and that theie should be the secuiity of them all for the due application of the money It is a general rule, confirmed by the late ease of ticott v Godwin (1 Bos & P 67), that all joint coverunteea ot obligees must , (a) Before Wilde, C J, Patteson, J, Coleridge, J, Coltman, J, Maule, J, Wightman, J , Erie, J , and Williams, J 1EJ.637. WETHKRELL V. LANG8TON 271 sus. In this case, therefore, the plaintiff was wrong in suing alone, without shewing sotne...
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