1843.-The Earl of Mexborough v. Bower. of the shafts on the demised premises, any coal of any other proprietor, and from carrying the same over the demised premises; and from doing &c., any act &c., in breach of the covenants in the lease. The affidavit in support of the motion verified the statements in the bill, and also stated that, by erecting proper dams or barriers, the said communication might be blocked up, and the water prevented flowing from the said property of Sir J. Lowther into the bed or seam of coal comprised in the aforesaid indenture. The affidavits in opposition stated, that there was a fall or dip from the plaintiffs' collieries to those of Sir John Lowther; that consequently all the water necessarily flowed towards Sir John Lowther's coal, and not towards the bed or seam of coal demised by the plaintiffs to the defendants; and that the effect of the communication would be, to materially benefit and improve the property and mines of the plaintiffs, and diminish the expense of working the same. Mr. Pemberton Leigh and Mr. Bates, in support of the motion. *Mr. Kindersley and Mr. Wright, contra. [*130] Waters v. Taylor,(a) Lingood v. Croucher, (b) Mitchell v. Harris, (c) were cited. THE MASTER OF THE ROLLS:-The only question in this case, is as to the form and extent of the injunction to be granted. From the course of the argument, one would really think, that some doubt had arisen as to the jurisdiction of the court to compel parties to perform their covenants and agreements, and that jurisdiction of this court, to prevent parties from wilfully and avowedly violating contracts deliberately entered into, had become perfectly unnecessary. What are the facts? A lease of a coal mine was granted by the plaintiffs; certain covenants required by one party were en (a) 15 Ves. 10. (c) 2 Ves. jun. 131. 1843.-The Earl of Mexborough v. Bower. tered into, and agreed to by the other, and constituted a portion of the consideration upon which the contract was founded. It is now plainly admitted by the defendants, that they have acted in direct violation of those covenants, and an application being made to this court to prevent that violation being continued, it is said, in answer by the defendants, "We have indeed violated the covenants, but we have not done it in a way prejudicial to you; on the contrary, according to our judgment and the view we take of your case, this is a very profitable and beneficial proceeding for you, and you must abide by our judgment." It is sufficient to say, that the plaintiffs have a right to insist on their own view of their own interest, and that even if it should be as beneficial to them, as has been argued on the other side, [*131] they may nevertheless choose to insist on having the terms of the contract strictly obeyed. Next it is said, "You had notice of this long before you filed your bill; a treaty for compensation took place after you were aware of it, and if the proposed compensation had satisfied you, you would never have complained of this violation." It is possible that the parties who stipulated for the benefit of these covenants would have waived them, and they might have entered into a treaty for the purpose of considering whether such a compensation in damages would be made, as would have induced them to waive the agreement. But here the case is otherwise: they were not satisfied, and they therefore demand the strict performance of the contract. -- With regard to the length of time, nothing can be more true than this, if parties come and ask for an injunction ex parte, the court looks most minutely to the time in which they have permitted the matter complained of to proceed, and will not allow them to obtain an injunction in the absence of the other party, when they have themselves, for some time, acquiesced. It is quite reasonable that that should be so, because the granting of an injunction ex parte is the exercise of a very extraordinary jurisdiction, the effect of which, in every case in which it is asked is almost alarming; therefore the time at which the plaintiff first had notice of the existence of the subject of complaint, is looked to with the greatest care and jealousy, in order to prevent an 1843. The Earl of Mexborough v. Bower. improper order being made against a party in his absence; but . when the party has notice of the motion, the question then is entirely of a different kind. The question then is, whether, during the time which has elapsed, there has been a course of conduct from which a waiver of the terms or an acquiescence in the violation of the "contract is to be inferred. That is [132] quite another thing, and there is nothing at all like it in this case.[1] The next thing said is, "You have accepted a compensation for increased work, and a sum of money has been paid now in respect of it; but the answer is, that there is, in other respects, a continued violation of the covenants, and no acquiescence in the violation. The remaining argument is, that the deed contains a clause for a reference to arbitration. Now there are a great number of cases in which, from the difficulty of ascertaining the truth and the great complication of the rights and interests involved, it is almost impossible for the court to do strict justice between parties within such limits of time and expense as are in any degree proportionate to the value of the interests in question. Many cases occur, in which it is perfectly clear, that by means of a reference to arbitration, the real interests of the parties will be much better satisfied than they could be by any litigation in a court of justice. In these cases the court has shown itself very anxious that matters of this kind should be determined in a way most beneficial to the parties, and much more so, when it finds that the parties, anticipating difficulties of that kind, have provided for their settlement by arbitration. It has, however, been decided, that these clauses for a reference are not binding upon the parties, who cannot contract themselves out of their right to have their disputes settled in courts of justice. Notwithstanding the many cases in which a reference to arbitration may justly be preferred to prolonged litigation in court, cases without end arise, in which, by no possibility, could arbitrators do that justice which the powers Lew [1] Effect of delay in applying for an injunction; Baily v. Taylor, 1 Myl. & Cr. 73. Bacon v.. Jones, 4 Myl. & Cr. 439. Rouse v. Jones, 1 Phillips, 462. is v. Chapman, 3 Beav. 133. 1843. The Earl of Mexborough v. Bower. of courts of justice enable them to administer. Cases arise which were not in the contemplation of the parties when they entered into their agreement. It has, under these circumstances, [*133] been, I *think justly held, that arbitration clauses are not to be enforced against the parties, and I find nothing in the wording of these particular clauses which at all alters this case. Upon none of these grounds do I think the plaintiffs have, in any way, disentitled themselves to the protection of this court, or to their right to insist in this court that the covenants which they have contracted for shall from day to day be obeyed by the defendants. Nevertheless, it is very important to consider what the terms of the injunction are to be; I do not think it ought to extend beyond the violations which have taken place; it ought not to be expressed in such general terms as may imply that the defendants intend to violate those covenants which they have hitherto respected. This motion asks for something more than ordinary; namely, to restrain the defendants permitting water to flow through the communication. It is however no unusual thing to ask an injunction in this form: I think it was granted in the case of Robinson v. Lord Byron,(a) and in other cases. Indeed, I believe that in another branch of the court, some few years ago, a direct order was made for the party to do that which was required, to put an end to the violation of covenants: I do not however know whether that has been since acted upon, and I do not mean to deviate from the regular and established practice. The injunction therefore must be confined to those things in [*134] respect of which at this time and upon the evidence before me, it appears that the plaintiffs require protection, and it should not extend to the last general words; this court (a) 1 B. C C. 588. And see Blakemore v. The Glamorganshire Canal Company, 1 M. & K. 154; Milligan v. Mitchell, ib. 452; Lane v. Newdigate, 10 Ves. 192; Nutbrown v. Thornton, ib. 159; Rankin v. Huskisson, 4 Sim. 13; Taylor v. Davis, 3 Beav. 388, n. (e); Spencer v. The London and Birmingham Railway Company, 8 Sim. 193; Squire v. Campbell, 1 Myl. & Cr. 465, 467; Whittaker v. Howe, 3 Beav. 387, and 395, n.; The Great North of England &c. Railway v. The Clarence Railway, 1 Collyer, 507. 1843.-Barker v. Buttress. never, without necessity, presumes there will be a violation of the covenants.[2] The injunction was granted in the terms of the notice of motion, omitting the last clause. The order was affirmed on appeal, 9th December, 1843. 1843: December 14, 15. BARKER v. BUTTRESS. The remedies given by the Banking Act (7 G. 4, c. 46,) are not cumulative, but substitutional for the prior liabilities of partners, and therefore proceedings cannot be had against a party three years after he has ceased to be a member. A person at his death was member of a banking company established under the 7 G. 4, c. 46, and subject to its liabilities. After the expiration of three years, a suit was instituted for the administration of his estate, and the common decree was made for taking an account of his debts. Persons who were creditors of the banking company at the testator's death claimed before the master. Held, that their claims did not come within the scope of the decree; secondly, that their claims were barred by the lapse of three years; and, thirdly, that the proper way of bringing their claims before the court was by petition, and not by exception. THE question in this case depended on the construction of the Banking Act (7 Geo. 4, c. 46.) It will therefore be convenient, in the first place, to refer to its provisions, so far as it affected the present case. By the first section, banking copartnerships, though consisting of more than six persons, may issue bills payable on demand, at any place exceeding sixty-five miles from London; but that sec tion also provides as follows: "that every member of any such corporation or copartnership shall be liable to, and responsible for, the due payment of all bills and notes which shall be issued, and for all sums of money which shall be borrowed, owed, or taken up by the corporation or copartnership *of which [*135] such person shall be a member, such person being a member at the period of the date of the bills or notes, or becoming [2] As to injunction to restrain the working of mines, see Hilton v. The Earl of Granville, Cr. & Ph. 283. |