or any other part of the premises that had not been in tillage within the last twenty years from the time of making the lease, should, during the continuance of the term, be digged up, ploughed or converted into tillage, he shall pay the further yearly rent or sum of 5l. for every acre so to be broke up or converted into tillage; this increased rent is not to be considered as a penalty, but as a liquidated satisfaction fixed and agreed upon between the parties. And therefore if an action is brought for recovering it, a court of equity will not interpose, or give any relief. So, in the case of Lowe v. Peers, (o) which was an action upon a marriage-contract to the effect following: " I do hereby promise Mrs. Catherine Lowe, that I will not marry with any person besides herself: If I do, I agree to pay to the said Catherine Lowe 1000l. within three months next after I shall marry any body else. Witness my hand and seal, Newsham Peers." This deed was executed in 1757. And in 1767, Peers married another woman; whereupon this action was brought; and at the trial, the jury found a verdict for the plaintiff, 1000l. damages. But a question was raised for the opinion of the Court, whether the 1000/., mentioned in the deed was inserted as a penalty, or as liquidated damages. And the Court determined, that the deed itself liquidated the certain sum: it was ascertained and fixed between the parties themselves; and was therefore the true and proper quantum of the damages. Lord Mansfield said, "The money was payable upon a contingency which has happened; and therefore it ought to be paid. There is a difference between covenants in general, and covenants secured by a penalty or forfeiture: In the latter case, the obligee has his election: he may either bring an action of debt for the penalty, and recover the penalty, (after which recovery of the penalty, he cannot resort to the covenant; because the penalty is to be a satisfaction for the whole) or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty, toties quoties. And upon this distinction they proceed in courts of equity. They will relieve against a penalty upon a compensation: but where the covenant is to pay a particular liquidated sum, a court of equity cannot make a new covenant for a man, nor is there any room for compensation or relief. As, in leases containing a covenant against ploughing up meadow; if the covenant be, not to plough,' and there be a penalty, a court of equity will relieve against the penalty, or will even go further than that to preserve the substance of the agreement: but if it is worded to pay 51. an acre for every acre ploughed up;' there is no alternative, no room for any relief against it; no compensation; it is the substance of the agreement. Here the specified sum of 1000l. is found in damages: it is the particular liquidated sum fixed and agreed (0) 4 Burr. 2225. 6 upon between the parties; and is therefore the proper quantum of the damages." So, in the case of Fletcher v. Dyche, (p) which was an action of assumpsit for work and labour, and goods sold and delivered. The defendant pleaded a set-off for money due upon a bond, with a condition reciting, that the plaintiff had contracted and agreed with the defendant that he would perform and execute all the smith and ironmonger's work to be done and performed in and about the repairs of the parish church of St. Mary-le-Bow, and which were mentioned and expressed in the said particular plan or estimate, and in the manner therein directed to be done, and find and provide all the materials for the doing thereof, within the time or space of six weeks from the day of the date of the said writing obligatory, at and for the price or sum of 1187. 18s., which was agreed to be paid in three months after the said parish church should be completely repaired; and had agreed that if he should not have done and performed the said smith and ironmonger's work within the time thereinbefore mentioned to have been agreed upon and limited for the doing thereof, he would forfeit and pay to the defendant the sum of 10l. for every week after the expiration of the time agreed upon and limited for the doing thereof, until the said smith's and ironmonger's work should be completely finished. The plea then stated that the defendant did not, within the said space of six weeks from the day of the date of the said writing obligatory, perform or execute all the smith and ironmonger's work, &c., but suffered and permitted the same to remain unfinished for the space of four weeks next after the expiration of the time agreed upon for the doing thereof, whereby the plaintiff became liable to pay to the defendant the sum of 40%., being at and after the rate of 10l. for each and every week of the said four weeks; and the sum of 40l., and every part thereof, at the time of the commencement of this suit, was justly due and owing from the plaintiff to the defendant, upon and by virtue of the said writing obligatory and the condition thereof. Το this plea there was a general demurrer, and joinder in demurrer. And the objection upon the demurrer to the plea was, that the weekly payments were in the nature of a penalty, and not as stipulated damages; and therefore could not be the subject of a setoff. But the Court overruled this objection, and determined that the weekly payments were not penalties, but in the nature of liquidated damages, and might be set off against the plaintiff's demand. Ashhurst Just. said, "The sums set off are in the nature of liquidated damages, and are such a kind of penalty, if they may be called by that name, as a court of equity would not relieve against. The object of the parties in naming this weekly sum, was to prevent any (p) 2 Term Rep. 32. altercation with respect to the quantum of damages which the defendant might sustain by reason of non-performance of the contract. It would have been difficult for the jury to have ascertained what damages the defendant had really suffered by the breach of the agreement; and therefore it was proper for the contracting parties to ascertain it by their agreement: So that this is a case of stipulated damages; and it is not to be considered as a penalty." And Buller J. said, "The principal question to be considered is, whether this is in the nature of liquidated damages or a penalty. When there is a penalty in the bond, it is strange that the sum mentioned in the condition should be called a penalty; I do not know how there can be an equitable and a legal penalty. But this is as strongly a case of liquidated damages as can possibly exist, and is like the case of demurrage. In either case it is impossible to ascertain precisely what damages the party has really sustained; and therefore the contracting parties agree to pay a stipulated sum." So, in the case of Barton v. Glover, (q) which was an action of assumpsit; and at the trial it appeared that the plaintiff and defendant were coach proprietors at Croydon, and on the 2d of April, 1815, they entered into an agreement, the substance of which was, that in consideration that Barton would pay to the defendant the sum of 175l., the defendant would withdraw his stage-coach from the road, and not engage or concern himself in driving any other stage-coach on the road from Croydon to London; and the following was the clause in the agreement upon which the question arose : "And for the due and punctual performance of this agreement, each of the said parties to these presents does hereby agree to bind himself to the other of them in the sum of 500, to be considered and taken as liquidated damages, or sum of money forfeited or due from the one party to the other who shall neglect or refuse to perform his part of the agreement." It was contended by the defendant's counsel, that this ought to be taken as a penalty, and not as liquidated damages. But Gibbs C. J. said, "There are a great many cases in which stipulated damages are contracted for, but in which neither courts of law nor equity will permit the parties to recover them. In Astley v. Weldon (r) there was no stipulation that the damages should be liquidated; and in that case there were several minor fines, which repudiated the idea that the whole penalty should be due for every breach. But in the present case, unless the damages are to be considered as liquidated, and definitively ascertained by the parties themselves, the clause in the agreement means nothing." But in the case of Errington v. Aynesly, (s) where a bond was entered into in the penal sum of 9000l. for the performance of covenants to build a bridge for 6000/., and the materials valued at 30007., and to sup (9) Holt N.P.Cas. 43. Man. Index, tit. Penalty, last edit. (r) Ante, 29. port the bridge for seven years; the 6000l. was actually paid, and the bridge was built, but thrown down by a flood a year afterwards. An action was brought upon the bond; but an injunction was granted, and an issue of quantum damnificatus ordered; the sum mentioned in the bond being considered as a penalty, and not as a liquidated sum. And in the case of Sloman v. Walter, (t) where the plaintiff and defendant were partners in the Chapter Coffee-house, and upon entering into the partnership it had been agreed that the business should be conducted entirely by the plaintiff, but that the defendant should have the use of a particular room in the house whenever he thought proper. And in order to enforce this agreement, a bond was entered into by the plaintiff to the defendant in the penalty of 500l. After some time the defendant demanded the use of the room, and being refused, brought an action for the penalty of the bond. The plaintiff filed this bill, praying an issue to try quantum damnificatus, and an injunction in the mean while. Lord Thurlow Ch. said, "The only question was, whether this was to be considered as a penalty, or as assessed damages. The rule that where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty as only accessional, and therefore only to secure the damage really incurred, is too strongly established in equity to be shaken. This case is to be considered in that light. The injunction must be continued till the hearing. The reporter adds, "That the same had been done in a case of Hardy v. Martin, 7th May, 1783, (u) where the plaintiff and defendant had been partners as brandy merchants; on plaintiff's quitting the business, and selling the lease and good will of the shop to the defendant for 3004, he entered into bond in 600l. penalty not to sell for nineteen years, any quantity of brandy less than six gallons, within the cities of London and Westminster, or five miles thereof, or to permit any person so to do in his name, &c. Upon a breach, action brought, and a verdict for the penalty, plaintiff filed this bill, praying that an account might be taken of the actual damage sustained by the defendant, and an issue directed for that purpose; and that on payment of the damages defendant might be restrained from taking out execution for the penalty of the bond. Upon motion to dissolve the injunction, and cause shown, the rule was discharged. So, in the case of Astley v. Weldon, (v) which was an action upon a special agreement, whereby the defendant, in consideration of a certain weekly salary, agreed with the plaintiff, amongst other things, that (t) 1 Bro. Ch. C. 418. (2) Since reported in 1 Cox Rep. 26. (v) 2 Bos. & Pul. 346. D she, the said defendant, would, during the term of three years, at the usual and accustomed hours in each day, perform at the plaintiff's theatre, in the several public performances to be from time to time exhibited on the stage of the theatre, when and as often as she should be required; and likewise further agreed to attend all rehearsals at the theatre; and also that she would, on every night's public performance, be at the theatre, at least one half-hour before the public. performance should begin. "And lastly it was agreed on, by and between the said parties, that either of them neglecting to perform that agreement, according to the tenor and effect and the true intent and meaning thereof, should pay to the other of them the full sum of 2007. of lawful money of Great Britain, to be recovered in any of His Majesty's courts of record at Westminster.” The Court, after argument, held, that the sum mentioned in the agreement was in the nature of a penalty, and not of liquidated damages: and Lord Eldon Ch. J. in giving his opinion on this case took a very luminous review of the cases which had been determined on this subject, and the principle upon which they were governed. His Lordship observed, "That when the cause came before me, at nisi prius, I felt, as I have often done before in considering the various cases on this head, much embarrassed in ascertaining the principle on which those cases were founded; but it appeared to me that the articles in this place furnished a more satisfactory ground for determining whether the sum of money therein. mentioned ought to be considered in the nature of a penalty, or of liquidated damages, than most others which I had met with. What was urged in the course of the argument has ever appeared to me to be the clearest principle, viz. that where a doubt is stated whether the sum inserted be intended as a penalty or not, if a certain damage less than that sum is made payable upon the face of the same instrument, in case the act intended to be prohibited be done, that sum shall be construed to be a penalty. The case of Sloman v. Walter did not stand in need of this principle; for there, by the very form of the instrument, the sum appeared to be a penalty; in which case a court of equity could never consider it as liquidated damages, but must direct an issue of quantum damnificatus. A principle has been said to have been stated, in several cases, the adoption of which one cannot but lament, namely, that if the sum would be very enormous and excessive, considered as liquidated damages, it shall be taken to be a penalty, though agreed to be paid in the form of contract. This has been said to have been stated in Rolfe v. Paterson, where the tenant was restrained from stubbing up timber. But nothing can be more obvious than that a person may set an extraordinary value upon a particular piece of land, or wood, on account of the amusement which it may afford him. In this country, a man has a right to secure to himself a property in his amusements; and if he |