1838. the plaintiff for 40%., and desired them also to assess the Each. of Pleas, amount of damage actually sustained by the plaintiff by reason of this breach of the contract. The jury assessed this damage at 57.; and the learned Judge thereupon gave the defendant leave to move to reduce the damages to that amount. On a subsequent day in the term, Montagu Chambers moved to arrest the judgment, or to reduce the damages pursuant to the leave reserved, or for a new trial. First, the agreement on which the plaintiff sues being in partial restraint of trade, without any fair or reasonable consideration, is void. All the articles except the 12th, on which the breach is alleged, do contain a consideration moving from each party; but that article is wholly unilateral, and shews no consideration for the restraint it imposes upon the defendant, not to carry on his trade for his own profit after the determination of the partnership. Nothing can be collected which is at all in the nature of a consideration unless it be the partnership itself, and that might be determined within a month by a notice given the very next day after it was formed. It must be conceded, that since the decision in Hitchcock v. Coker (a), the Court will not inquire into the adequacy of the consideration; but that case did not overrule the previous authorities, in which the term " adequate consideration" had been employed, but only explained the sense in which it was to be understood, viz., as importing such a restraint as afforded a fair and reasonable protection to the party in whose favour the restraint was imposed. Such an agreement, therefore, is still void, unless founded upon a just and reasonable consideration, and there must be a mutuality of benefit: Mitchell v. Reynolds (b), Davis v. Penton (c), Young v. Timmins (d). [Lord Abinger, C. B.— (a) 1 Nev. & P. 796. (b) 1 P. Wms. 181; 10 Mod. 130. (c) 6 B. & C.216; 9 D. & R. 369. LEIGHTON V. WALES. Excl. of Pleas, The result of the cases seems to be, that the only ques 1838. LEIGHTON v. WALES. tion the Courts now inquire into is, whether the consideration is valid in law, and not colourable.] is Secondly, the damages ought to be reduced: the sum of 401. mentioned in the 12th article must be construed as a penalty, and not as liquidated damages. Where there any uncertainty or ambiguity in the terms of a stipulation of this kind, the Courts will lean against construing it as a stipulation for liquidated damages: Horner v. Graves (a), Davis v. Penton. The language of the present clause is similar to that which occurred in those cases, in which the sum was construed to be a penalty; and in Davis v. Penton, Abbott, C. J., says: "Whoever framed this agreement does not appear to have had any very clear idea of the distinction between a penalty and liquidated damages; for the sum of 500l. is described in the same sentence as a penal sum and as liquidated damages. Now, both expressions cannot be satisfied. We must therefore look to the whole of the agreement, in order to ascertain whether the 5007. was intended to be a penalty or liquidated damages." So here, looking at the whole agreement, especially at the clause immediately succeeding the 13th, which treats the 100%. also as a penalty to be recovered as aforesaid, i. e., as liquidated damages, it is impossible to collect a clear intention that either of these sums should be treated as liquidated damages. The 100%. certainly cannot, without breaking in upon the principle laid down in Astley v. Weldon (b), and Kemble v. Farren (c), that where articles contain covenants for the performance of several matters, and then one large sum is stated at the end as payable upon breach of performance, that must be considered as a penalty. And the same rule of interpretation must be applied to both the clauses. (a) 7 Bing. 735; 5 M. & P. 768. (b) 2 Bos. & P. 346. (c) 6 Bing. 141; 3 M. & P. 425. 1838. Lord ABINGER, C. B.-I think there is no ground for a Exch. of Pleas, rule on the first point; the partnership itself constituted a sufficient consideration for the very limited restraint of trade imposed on the defendant, which is of a kind that very usually follows on the formation of partnerships. PARKE, B.-As to the point made in arrest of judgment, Hitchcock v. Coker seems to have settled the law on this subject. The agreement is good if there be a sufficient consideration in law to support a contract; and the entering into a partnership, from which the party derives a benefit, is of itself a sufficient consideration to support any promise of this nature which he may choose to make. The partnership must last at least a month: and it is clear, since the case of Hitchcock v. Coker, that the Court cannot inquire into the extent or adequacy of the consideration. BOLLAND, B., concurred. On the other point, the Court took time to look into the agreement; and a few days afterwards, Lord ABINGER, C. B., (having stated the facts) said :The question turned upon this, whether or not the contract was for a penalty, or for liquidated damages? On examining the agreement, it seems to us that it must be taken as a contract for liquidated damages. There is nothing to shew that the parties contemplated the occurrence of particular damages, and intended to take the penalty so incurred as a settlement of the whole. We therefore think there ought to be no rule. Rule refused. LEIGHTON v. WALES. Exch. of Pleas, 1838. A testator de vised real estates with remainder to his first and other sons in tail, with re mainder to T. P. for life, remain der to his first and other sons in tail, remainder to G. P. for life, with re mainders over; and gave a power to the several persons who, by virtue of the limitations in the will, should be in actual possession by deed or will to appoint to of the estates, ATTORNEY-GENERAL v. The Rev. GEORGE PICKARD, INFORMATION against the defendant for legacy to W. T. for life, duties claimed to be payable under the will of John Trenchard, deceased. The first count of the information stated, that on the 4th of December, 1815, John Trenchard duly made his last will and testament in writing, according to the form of the statute in such case made and provided, and thereby gave and devised certain manors, hereditaments, and premises in the said will first mentioned, and therein more particularly described, unto Francis John Browne and the Rev. John Morton Coulson, their heirs and assigns, to the several uses upon and for the several trusts, intents, and purposes, and under and subject to the several powers, provisoes, conditions, and declarations thereinafter limited, declared, expressed, and contained of and concerning the same, that is to say, (amongst other things, and subject and chargeable to certain annuities in the said will particularly mentioned), to the use of William Trenchard and his assigns, for and during the term of his natural life; and from and immédiately after the determination of that estate by forfeiture or otherwise in the lifetime of the said William Trenchard, to the use of the said Francis John Browne and John Morton Coulson, and their heirs, during the natural life of him the said William Trenchard; in trust to support the contingent uses and estates thereinafter limited, &c.; and from and immediately after the decease of him the said William Trenchard, to the use of the first, second, Ithird, fourth, and every other son of the said William his will charged-Trenchard lawfully to be begotten severally, successively, any woman or women they should marry, by way of jointure, rent charges not exceeding 7501. not ex per annum for life, to be issuing out of and chargeable upon the devised estates, clear of all taxes and whatsoever. estates, and by them with 750%. per annum by way of jointure to his wife, under the power, and died without issue male, whereupon G. P. entered into possession:-Held, that G. P. was chargeable with legacy duty after the rate of 10%. per cent. on the value of the rent charge of 7501. per annum. EASTER TERM, 1 VICT. and in remainder, one after another, in order and course as they respectively should be in seniority of age, and of the heirs male of the respective bodies of such sons respectively; and for default of such issue, to the use of his nephew Thomas Pickard, and his assigns, for and during the term of his natural life, [with remainder to trustees to preserve, as before, and with remainders in tail to his issue, as before]: and for default of such issue, to the use of his nephew, the Rev. George Pickard, clerk, (the defendant), and his assigns, for and during the term of his natural life, [with remainder to trustees to preserve, as before], with divers other limitations over in the said will particularly mentioned; and the said testator also by his said will gave and devised certain other manors, hereditaments and premises, in the said will secondly mentioned and therein particularly described, unto the said Francis John Browne and John Morton Coulson, their heirs and assigns, to the several uses, upon and for the several trusts, intents, and purposes, and under and subject to the several powers, provisoes, conditions, and declarations thereinafter limited, declared, expressed, and contained, of and concerning the same, that is to say, (amongst other things), as to all that his advowson, donation, and right of patronage and presentation, in and to certain rectories and parishes therein mentioned and particularly described, to the use of them, the said Francis John Browne and John Morton Coulson, their executors, administrators, and assigns, for the term of 99 years, to be computed from the day of his decease, upon the trusts therein mentioned; and as to the said advowsons and hereditaments comprised in the said term of 99 years, from and immediately after the expiration or other sooner determination of the said term, and in the meantime subject thereto and to the trusts thereof; and as to all other the said manors, hereditaments, and premises, secondly above devised, whereof no use was therein before declared; to the use of his said VOL. III. M. W. |