Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. GAINSFORD tive clause be in the first or last part of a sentence, or at the GRIFFITH. beginning of the first or at the end of the last sentence, which in v. "said A. B. according to the form 66 of the statute, &c., says," &c. But the best method seems to be, to state the condition of the bond and the indenture, and to assign the breaches in the declaration. For if the defendant should plead not est factum, the plaintiff may find some difficulty in proceeding under the statute; for it does not seem clear whether in that case he is to suggest breaches, or to sue out a scire facias (but see 2 Saund. 187 a. 187 b. in the note). Therefore to obviate any difficulty, taken as liquidated damages, but negatively also that it shall not be taken as a penalty. 6 B. & C. 216. Davies v. Penton. 6 Bing. 141. Kemble v. Farren. 3 Moo. & P. 425. S. C. Law Rep. App. S. Dom. Proc. 1. Thompson v. Hudson. 5 Bing. N. C. 390. Boys v. Ancell. 7 Scott, 364. S.C. 9 M. & W. 678. Horner v. Flintoff. The law, nevertheless, remains unshaken, that parties may, by their mutual agreement, settle the amount of damages, uncertain in their nature, in respect of the performance or omission of a particular specified act, at any sum upon which they may agree: and such sum may be recovered as liquidated damages. 6 Bing. 148. 2 T. R. 32. Fletcher v. Dyche, 1 Mees. & W. 412. Duckworth v. 7 Alison. 3 Mees & W. 545. Leighton v. Wales. 13 M. & W. 695. Green v. Price. 14 M. & W. 187. Rawlinson v. Clarke. 1 Exch. 659. Galsworthy v. Strutt. C. B. 716. Sainter v. Ferguson. 5 H. of L. 72. Ranger v. G. W. Railway Co. 6 E. & B. 528. Reynolds v. Bridge. 4 Exch. 776. Atkyns v. Kinnier. 4 H. & N. 511. Betts v. Burch. E. B. & E. 563. Mercer v. Irving. 7 H. & N. 594. Sparrow v. Paris. 7 H. & N.778. Carnes v. Nesbitt. 4 C. B. N. S. 97. Reindel v. Shell.] Where the sum is considered as liquidated damages, and actions of covenant or assumpsit are brought to recover it, it should seem that the jury are bound by the agreement of the parties to give that sum. 4 Burr. 2225. Lowe v. Peers. Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. good sense may be applied to the one and the other, then it GAINSFORD shall extend to both sentences; but otherwise it is, if such Holt. N.P.C. 43. Barton v. Glover, per Gibbs, C. J. [3 B. & A. 692. Farrant v.Olmius. But see Mood. & M. 41. Randal v. Everest. (e) Where the plaintiff so declared, but before the delivery of the declaration delivered particulars of demand stating the condition of the bond and several breaches of it, it was held that a judge at chambers had no authority to order proceedings to be stayed as to certain of such breaches, upon payment into court of the amount v. GRIFFITH. "of 500l. (the penalty) above de"manded; yet the said defendant, although often requested, hath "not paid to the said plaintiff the "said sum of 500l. above demanded, 66 or any part thereof, but so to do hath hitherto wholly refused, and "still doth refuse, to the damage of "the plaintiff of 201." &c., as usual. The defendant then pleads to these breaches, and the issues joined thereon are tried as other issues are. At the trial the jury must find a verdict for the plaintiff with 18. damages, and 40s. costs as before, and must also assess damages upon such of the breaches as the plaintiff shall prove (ƒ). Upon the return of the postea, the statute directs that the like judgment shall be entered on the verdict as before, that is, to recover the debt (g), and 1s. claimed in respect of them. 4 C. B. 678. Kepp v. Wiggett. (f) The jury may assess the damages without a special venire, if they are assigned, whether in the declaration or the replication; but where they are suggested, there ought to be a special venire to enable them. 2 Stark. 381. Parkins v. Hawkshaw. 1 Mees. & W. 42. Quin v. King. 4 Bing. N. C. 724. Scott v. Staley. 6 Scott, 598. S. C.] (g) The penalty is still the Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. GAINSFORD Sentence be placed in the middle of one or two sentences ( (4) debt, notwithstanding this statute; and therefore, where a defendant is arrested for a sum less than the penalty, although greater than the damages assessed by the jury, he was not entitled to costs under the 43 G. 3, c. 46, s. 3. [Now become inoperative by reason of stat. 1 & 2 Vict. c. 110.] 10 East, 525. Cammack v. Gregory. 7 Taunt. 254. Talbot v. Hodson. 2 Marsh. 527. S.C. But it should seem that he may maintain an action for a malicious arrest. [In the case of Gowens v. Moore, 3 H. & N. 540, the plaintiff obtained judgment in an action on a bond in the penal sum of 20%. conditioned for the payment of 12., and judgment was entered up for the sum of 201. and one shilling damages; and it was held by the Court of Exchequer that the plaintiff was deprived of his costs by the stat. 13 & 14 Vict. c. 61 (County Courts Act), s. 11. Pollock, C. B., and Watson, B., being of opinion that the plaintiff had not "reco"vered" a sum exceeding 201., for that what the legislature meant by fieri facias, for instance), which must of course be to levy the debt and costs recovered by the judgment, but is indorsed to levy the damages assessed for the breaches of covenant, the costs found by the jury, and the costs the word recover, is what the plaintiff is to get and put into his pocket, and here he would get only 127. But Bramwell, B., inclined to think that the penalty was the sum due, but was of opinion (in which Watson, B., agreed) that the one shilling nominal damages were not recovered― but merely put on the record for the purpose of giving costs; so that the proper judgment was that the plaintiff was entitled to recover 201. and no more. And Bramwell, B., took occasion to say that the origin of the 95th section of the C. L. P. Act, 1852, which abolished the distinction between debt and damages for this purpose, was a case like the present, where a person paying money into court doubted whether he was not bound to pay in something more for damages: the object was to ascertain the legal amount due, and that judgment should in all cases be given according to that. See ante, 26, n. (i), where the 95th section is stated verbatim.] Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. of increase, together with all reasonable charges and expenses for executing the fieri facias; but if the damages assessed and the charges and expenses for executing the fieri facias exceed the 500l. (the penal sum recovered), then it must be to levy the sum of 500l. and the costs of increase. The provisions of the statute, by which the plaintiff is entitled to the charges of the execution, I conceive, run through the whole section, and extend to all cases where breaches are assigned by virtue of it. It is expressly stated in the former part of the section, that the defendant shall be discharged if the plaintiff shall be fully paid all the damages and costs, and the charges of the execution; and the subsequent part, which provides that the judgment shall remain as a security to answer subsequent breaches, refers to the former part, and necessarily includes the same provision. As the statute directs that if, by reason of any execution, the plaintiff shall be fully paid all the damages and costs, and the charges of the execution, the defendant's body, lands, or goods shall be thereupon forthwith discharged from the execution, which shall be entered upon record, it may perhaps be proper to make an entry upon the record immediately after the judgment somewhat to this effect, "And the "said sheriff is commanded that he "cause to be made of the goods "and chattels of the said W. within "his bailiwick (the debt and costs, "setting out the writ,) and which "said writ was indorsed to levy the "sum of 2001. being the amount of "the damages in form aforesaid "assessed by the said jury by rea son of the said several breaches "above assigned, and also of the "said costs and charges, together "with all reasonable charges and expenses for executing the said "writ; provided that the amount "of the said damages so assessed by reason of the said breaches, "and of the said charges and ex"penses for executing the said writ, "should not exceed the said sum of 500l.; but if the same should ex"ceed that sum, then to levy the "said sum of 500l. and the said costs and charges above awarded "and adjudged. And the said. "sheriff now here returns, that by "virtue of his said majesty's writ "to him in that behalf directed, he "has caused to be made, &c., the "said sum of 2001. and also the "sum of £ being the amount "of the reasonable charges and "expenses for executing the said writ, which two last mentioned sums he has now ready here to 'pay to the said J.; whereupon "the said J. now here acknow"ledges that he has been fully paid "and satisfied the amount of the "said damages so assessed by rea son of the said breaches as afore"said, and of the said costs and "charges above awarded and ad"judged, and also the reasonable Construction of Covenants-Stat. 8 & 9 W. 3, c. 11. charges and expenses for execut"ing the said writ; whereupon the said goods of the said W. are now "here discharged of and from the "said execution." It is necessary to shew how much has been levied for the charges of execution, that it may appear when the amount of the debt, that is, the penal sum, has been levied; beyond which, as I have already observed, except for the costs of suit, the execution cannot go. It is necessary likewise to repeat the words, "the damages assessed "by reason of the breaches," so often, to distinguish them from the damages given by reason of the detention of the debt; which, I conceive, the plaintiff has no right to levy at all. The next consideration is, where there is judgment for the plaintiff either upon demurrer or by de (h) [In a case where breaches must be assigned or suggested under stat. 8 & 9 W. 3, c. 11, s. 8, if the defendant does not rejoin, the ordinary course is for the plaintiff to sign judgment for want of a plea, strike out all the pleadings subsequent to the declaration, and suggest breaches, if the declaration itself does not state them. But this is only a rule of convenience; and if the nature of the case requires that the pleadings down to the default, should continue on the record, they ought to be retained. Therefore, where to debt on fault (h). In each case, the plaintiff must suggest upon the roll breaches of the covenants he seeks satisfaction for; the manner of doing it will in some measure depend upon what stage the proceedings are in at the time of the demurrer or judgment by default. If the demurrer be to the plea, and that has stated the condition to be for performance of covenants, the plaintiff has only to state the breaches in his suggestion. But if the demurrer be to the declaration, or if the judgment by default be for want of a plea to the declaration, and that is only upon a common bond, in these cases the plaintiff must make his suggestion in the form which has already been given, where the plaintiff states the whole in his declaration. See the form, 2 Richard. Pract. C. P. 285, 5th bond conditioned to perform certain duties the defendant pleaded generally, performance of the condition, plaintiff replied, alleging breaches, by not performing some of the duties, defendant suffered judgment by default, and plaintiff sued out a writ of inquiry, setting forth on the writ all the pleadings down to the end of the replication. 5 Q. B. 332. Lawes v. Shaw. And it was held that the course pursued was right, and that a statement of breaches appeared, of which the court executing the inquiry might properly take notice.] |