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gium, maris algarum, but omitting all allusion to this right to the shore;1 and in Dugdale's History of Imbanking, an immense mass of commissions of sewers, statutes, ordinances, byelaws, charters, inquisitions, writs of ad quod damnum and others are given, several of which relate to the Thames, but all, we believe we may venture to assert, wholly without hint or trace of this prerogative. A long continued examination of the Year Books enables us to speak with similar confidence respecting them; those annosa volumina vatum bear negative witness in support of the argument for the city, and the implied testimony derivable from various cases in them seems to us strong against the prerogative claim. Thus in the case referred to by the serjeant,3 from the Year Book of Edw. IV., part of what is said by Choke, C. J., goes further than what is cited for the city, for Choke says, “If I have land adjoining the sea, so that the sea ebb and flow on my land, when it flows every one may
fish on the water which is flowing over my land, for then it is parcel of the sea, &c.” Evidently assuming that ordinarily the shore is parcel of the adjoining lands. In another case in the same Year Book not mentioned by the serjeant, the same quite as clearly appears. It is a case of trespass for taking two butts of wine. Defendant pleaded they were wrecked out of a ship, and by the reflux of the sea thrown upon
prescribed for wreck, &c. The court objected to the plea on another ground, but took no point that it was bad for not showing that the shore was part of the manor by grant, &c., as they would have done (it would seem) if the modern doctrine of the dicta, that the shore is prima facie in the crown, had been then known and accepted as law. With respect to the modern cases, we must express our concurrence with the view taken of them in the argument for the city, and especially we agree
with the learned Town Clerk in considering that the Duke of
1 Ancient Laws and Institutes of England (published for the Record Commissioners by Butterworths), p.
3 Speech, p. 25.
• The customs as pleaded in Simpson v. Bythewood, and Geer v. Burtenshaw, 3 Lev. 307 and 85, and Lev. Entr. 214, lead to the same inference; and see special verdict, Sheppard v. Gosnold, Vaugh. 160. The statute 7 Jac. I. c. 18, recognises the right to the shore to be in those who have the adjoining lands, whom it calls “the owners of the soil there," see Calmady v. Rowe, 6 C. B.
Beaufort's case1 has incidentally decided the question. Mr. Jerwood replies as if it had been claimed as deciding it directly, which is nil ad rem. The late case of Calmady v. Rowe, 6
. C. B. 861, seems also to be very nearly decisive of the point, for it shows that acts of ownership, exercised by a lord of a manor upon the sea shore between high and low water mark, may be called in aid to show that the shore is parcel of the manor, where the ancient grant under which the manor is held does not expressly convey littus maris, though it conveys shipwrecks and wreck of the sea, which seems but a little distance from deciding that the sea shore passes as part of the manor.
ART. VIII.-- ON THE PARTIES TO AN ACTION OF COVE
NANT WHERE THE COVENANTEES HAVE A JOINT
CRITICISM of Mr. Preston's, in his edition of Shepherd's
Touchstone, has given rise to so much discussion in some very recent cases in the Courts of Queen's Bench and Exchequer, not to mention the suspicion, which we believe unfounded, of a difference between the two courts upon an important question of pleading, that we are induced to devote a few pages to a consideration of the proper parties to sue in an action of covenant where the covenantees have a joint interest.
Remarking upon the principles laid down by his author upon the authority of Slingsby's case, Mr. Preston proceeds :-“On the subject of joint and several covenants, that eminent lawyer, Sir Vicary Gibbs, assumed that covenants must necessarily be joint or several, according to the interests. The language was,
Wherever the interest of parties is separate, the action may be several, notwithstanding the terms of the covenant on which it is founded may be joint; and where the interest is joint the action must be joint, although the covenant in language purport to be joint and several.' With great deference, however,” adds Mr. Preston, “ the correct rule is, that, by express words, clearly indicative of the intention, a covenant may be joint, or joint and several to, or with, the covenantors or covenantees, notwithstanding the interests are several. So they may be several, although the interests are joint. But the implication or con
! Duke of Beaufort v. Mayor, &c., of Swansea, 3 Exch. 413.
struction of law, when the words are ambiguous, or are left to the interpretation of law, will be, that the words have an import corresponding to the interest, so as to be joint when the interest is joint, and several when the interest is several; notwithstanding language which, under different circumstances, would give to the covenant a different effect. The general rule proposed by Sir Vicary Gibbs, and to be found in several books, would establish that there was a rule of law too powerful to be controlled by any intention, however express.
A consideration of the following cases will, as we believe, lead to the conclusion that so far as regards actions by covenantees having a joint interest, Mr. Preston's statement of the law is too comprehensive to be strictly accurate.
The leading (though by no means the earliest) case on this subject is Slingsby's case, which was argued in Michaelmas Term, 29 & 30 Eliz., in a writ of error in the Exchequer Chamber, Slingsby, and Frances, his wife, brought an action of covenant in the King's Bench against Roger Beckwith, and declared on an indenture between the defendant Roger Beckwith of the first part, William Vavasor, Francis Slingsby, and Elizabeth, sister of the said Roger, of the second part, and George Harvey and the said Frances (then his wife) of the third part; and declared, that the said Roger, the defendant, by the said indenture had covenanted, promised and agreed to and with the said William and Francis, and to and with the said George and Frances his wife, and their assigns, and to and with each of them (et ad et cum quolibet et quâlibet eorum), that the said Roger was seised in fee of the rectory of A.; and on this covenant issue was joined, and the issue by nisi prius was tried for the plaintiff, and damages assessed; upon which judgment was given in the King's Bench. But in a writ of error in the Exchequer Chamber, it was resolved that the judgment was erroneous; for it appeared by the plaintiff's own showing in his declaration that the plaintiffs only could not maintain an action of covenant, but the other covenantees ought to have joined in the action with them, notwithstanding these words et ad et cum quolibet et quâlibet eorum; for as to these words this difference was agreed: when it appears by the declaration, that every of the covenantees hath, or is to have, a several interest or estate, then, when the covenant is made with the covenantees, et cum quolibet eorum, these words cum quolibet eorum make the covenant several in respect of their several interests. As if a man by indenture demises to A. black acre, to B. white acre, to C. green acre, and covenants with them
1 3 Coke's Reports, 18.
and quolibet eorum that he is lawful owner of all the said acres, in that case, in respect of the said several interests, by the said words et cum quolibet eorum the covenant is made several; but if he demises to them the acres jointly, then these words cum quolibet eorum are void, for a man by his covenant, unless in respect of several interests, cannot make it first joint and then make it several by the same or the like words cum quolibet eorum: for although sundry persons may bind themselves et quemlibet eorum, and so the obligation shall be joint or several at the election of the obligee, yet a man cannot bind himself to three, and to each of them, to make it joint or several at the election of several persons, for one and the same cause; for the court would be in doubt for which of them to give judgment, which the law would not suffer, as it is held in 3 Hen. VI. 44 b. There it appears that one brought a replevin against two persons for an ox, who made severalavowries, each by himself in his own right; and there, by advice of all the justices, both the avowries abated for the inconveniency, that if both the issues should be found for the avowants, the court could not give judgment for them severally for one and the same thing. Also the covenantor in the case at bar would be divers times charged for one and the same thing; and therefore the said words et cum quolibet eorum are in such case but words of amplification and abundance, and cannot sever the joint cause of action.
Another case frequently referred to as a leading case on this subject, is Eccleston and wife, executors, v. Clipsham, decided in Hilary Term, 19 & 20 Car. II. The plaintiffs declared upon an indenture between Tayler of the first part, the defendant of the second part, and Castle, the testator of the plaintiffs, of the third part, whereby it was declared that all the said parties had an equal interest in the contract in the indenture mentioned : and thereupon each of them respectively, for himself, his executors and administrators, &c., covenanted and agreed to and with the other and others of them respectively, and his and their respective executors, administrators and assigns, in the manner in the indenture mentioned. Saunders, who reports the case, took an exception to the declaration, on the ground that the covenant was joint with the plaintiffs' testator, and with Tayler, who survived the plaintiff's' testator, for though the covenant was joint and several by the words, yet the interest and cause of action was joint only; for it was an equal damage to Castle, the testator, and to Tayler, if the defendant had broken those covenants, as by the declaration was supposed, and therefore they ought to have joined in the action, and Castle, the plaintiffs’
11 Saund. 153.
VOL. XIV. NO. XXVI.
testator, being dead, the action was survived to Tayler, as in Slingsby's case, which he quoted. The learned editors of Saunders (Patteson and Williams) observe, in a note to this case, in allusion to a reference of Serjeant Williams to the judgment in Slingsby's case : “From what has been said, and which has “since been acknowledged to be good law, it is clear that the “ insertion or omission of the words cum quolibet eorum can “ make no difference to the covenantees, but the action will in “ all cases follow the interest without regard to the words of the “ covenant."
The next case is that of Spencer v. Durant, tried in B. R. anno 1 W. & M., and reported by Comberbach. This was an action of covenant on articles of agreement between several fiddlers, that they would not play, &c., asunder, unless on my Lord Mayor's Day, &c., and they were bound in 201. each to the other jointly and severally, and one only brings covenant and assigns the breach that the defendants played ad quandam tabernam, &c. Judgment was given for the defendant upon the principle of Slingsby's case, for they ought all to have joined, the interest being joint, and it was repugnant and contradictory for four persons to bind themselves the one to the other jointly and severally.
In Saunders v. Johnson (Michaelmas Term, 5 W. & M. in B. R.), the action was brought by the herald painters et pro quolibet et singulis eorum, that they should bring their work to such a place and that there such work should be done, and that the money paid for such work, when it should be received, should be brought to the aforesaid place and divided between them in certain parts and proportions; and because one of the covenantors did not bring his work to the place aforesaid there to be worked, the others brought an action of covenant against him, and judgment being by default, and a writ of inquiry of damages awarded and returned, it was moved in arrest, because the covenant was brought jointly where it was a several covenant, and therefore ill, according to the rule of Slingsby's case; and here the damages being in the place of the profit which they ought to have for the work, as such profit had been several, so their damages ought to be so likewise. The action was adjudged to be well brought, for it was founded upon the work not being brought to the place appointed for it, and in this part the covenant was joint, for they all had an interest and right jointly that the work should be brought there in order to be done, and though the words of the covenant were several, yet the subsequent matter and interest being joint, the covenant Comb. 115.
* Skinner, 401.