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Jackson v. Wilson.
tified, that he served the declaration in ejectment; but that he made no affidavit of the want of a sufficient distress on the premises, countervailing the arrears of rent; nor was it proved at the trial that any such affidavit was made. After the judgment, the witness received a writ of hab. poss. by virtue of which he turned out the tenant, and delivered possession to the agent of Colden, the landlord. The defendant then gave in evidence a lease of the premises from the heir of Colden to him, for 21 *years, dated the [*296) 15th March, 1794, by virtue of which lease the defendant entered and took possession.
Under the direction of the judge, the jury found a verdict for the defendant.
A motion was made to set aside the verdict, and for a new trial.
Woodworth, for the plaintiff.
Per Curiam. The case of Doe, ex dem. Hitchings, v. Lewis (Burr. Rep. 614,) is in point. That was an action of ejectment, brought by a tenant on his lease; and the defendant set up a judgment by default, in ejectment, in bar; and it was contended, that an affidavit that a half year's rent was due, and no distress to be found, ought to have been produced, as required by the statute, previous to a recovery. There was an acquiescence under the judgment for near 20 years, and it was held that it was not necessary to produce the affidavit; but that the judgment was to be presumed regular. Here there has been an acquiescence for near 14 years.
It was stated as a fact, in that case, that the ejectment was under the statute. Here that fact is to be presumed, for the defendant insisted upon it, at the trial, and produced the judgment; and the plaiutiff did not deny the allegation, that it was an ejectment under the statute, for non-payment of rent; but objected merely that the affidavit of no sufficient distress being found ought to have been produced. Whether it was a proceeding under the statute, or at common law, Vol. III.
Jackson v. Wilson.
is immaterial. We must presume that the judgment was regular, and that every thing necessary to entitle the landlord to recover, had been performed. It follows, that we must consider the necessary affidavit as having been filed,
or, if otherwise, that all the requisites attending an [*297] actual entry at *common law were previously com
plied with. This presumption is strengthened by the fact, that the judgment has stood near 14 years, and remains in full force. It would be unreasonable, and extremely inconvenient, to require the landlord, at this time, to prove all the pre-requisites to a right of recovery in the first action. We are opinion, therefore, that the motion ought to be denied.
(a) Seo Till. Adams on Ej. ed. 1846, p. 162, 172, and stat. 4, Geo. II. ch. 28, cited there; 2 Rev. Stais. of New York, p. 505, § 30, 31; 1 Wheaton Selwyn, N. P. ed. 1848, 732, 733 ; 2 Steph. N. P. 1478-1482: 2 Archbold's N. P. 413-415; 2 Roscoe, ac. rel. R. P. 537–539. See Jackson, ex dem. Van Rennsalaer v. Collins, 11 Johnson, 1; The Same v. Hogeboom, id. 163 ; Jackson, er dem. Grose v. Demarest, 2 Caines R. 382. The statute of 4 Geo. 11. ch. 28, is not in force in Pennsylvania, and the common law with respect to re-entry for non.payment of rent still prevails. (M'Cormick v. Connell, 6 Serg. & Rawle, 151.)
Dennis y. Cummins.
DENNIS against CUMMINS.
A. and B. entered into a written agreement, by which A. agreed to convey
to B. 700 acres of land to be appraised, in part payment for a farm, valued at 3,750 dollars, which B. agreed to sell to A. and it was covenanted that in case either party failed to fulfil the agreement, the party failing to per• form, “should forseit and pay to the party who should sulfil the agreement,
the sum of 2,000 dollars, as damages.” It was held, that the 2,000 dollars was, according to the intention of the
parties, as inferred from the whole agreement, to be considered as a penalty, and not as stipulated damages.
This was an action of debt, for 2000 dollars, founded on an agreement made between the parties, for the exchange of certain lands; whereby the plaintiff agreed to let the defendant have 700 acres of land, in the county of Ontario, at the appraisal of men, in part payment for a farm which the defendant agreed to sell the plaintiff, lying in the town of Canaan, in the county of Columbia, valued at 3,750 dollars. The agreement, after mentioning the terms of the exchange, contained the following covenant: “And it is further covchanted in and by the said agreement, by and between the said parties, that in case of failure to fulfil the aforesaid agreements or covenants, on the part of either of the said parties, that the party not fulfilling the said ageeement shall forfeit and pay to the other party who shall fulfil the said agrement, the sum of 2000 dollars damages.” And the ques. tion now submitted to the court was, whether that sum was to be considered in the nature of a penalty, or as damages liquidated and agreed on between the parties, to be recovered against the party in default.
The case was submitted to the court, without argument.
*THOMPSON, J. delivered the opinion of the court. [*298] I think this sum ought to be considered as a penalty, and not as liquidated damages. The real intention of the
Dennis v. Cummins.
parties ought to be sought after, and carried into effect, where it can be discovered from the instrument itself. If recurrence be had to this agreement, it never can be presumed that the parties had the sum in view, as the measure of damages, for the full value of the defendant's property, which was to be exchanged, was only 3,750 dollars; and the value of the plaintiff's considerably less. It would be a strange construction to suppose that the damages, on a failure in fulfiling such a bargain, should be 2000 dollars. It is true, that where it is clearly inferrible, from the nature and terms of the contract, that the parties have estimated and liquidated the damages, and have inserted that sum, as the amount to be paid, in case of non-performance, the court would be bound so to consider it. The cases, however, in the books, (4 Burr. 2228; 2 Term Rep. 34,) where penalties have been considered in the nature of liquidated damages, are either where it appears from the contract that the penalties have barely exceeded the damages sustained, or where, from the nature and circumstances of the case, no rule for estimating the actual damages could be adopted, or it was manifestly the intention of the parties, that the sum inserted should be considered as a compensation, and not as a penalty. But those cases by no means compare with the present. This is a case of strict penalty, and for which there does not appear to be any equivalent to the other party. To consider this 2000 dollars as the measure of damages in the present case, would be excessive and unreasonable in the extreme. therefore, of opinion, that it must be viewed only in the
nature of a penalıy, and that the plaintiff onght to (*299] assign *breaches under the statute, and assess the damages by a jury.
(a) (Old note.! In Astley v. Weldon, (2 Bos. & Pull. 346.) Lord Eldon and the other judges of the court of C. B. acknowledge the difficulty of lay
(6) In Dukin of Bacon v. Williams of Sewurd, (17 Wendell, 447, 454,) where the plaintitfs gave $3000 for the patronage and good will of a
Dennis v. Cummins
ing down any principle for the decision of ca of this nature. That case was an action of assumpsit, on an agreement made with a theatrical performer, in which it was stipulated, at the conclusion, " that if either party neglected to perform the agreement, according to the tenor and effect and true intent and meaning thereof, he should pay to the other the full sum of 200 pounds, to be recovered,” &c. And the court held that the sum was a penalty, and not liquidated damages.
The different adjudications on this subject are stated, and examined, by Mr. Evans, in the Appendix to his translation of Pothier on Obligations, (vol. 2, p. 93-98.) He inclines to the opinion that the penalty ought to be regarded as stated damages, unless there is some particular reason, in the nature of the contract, to the contrary ; and his observations are calculated to excite doubts as to the correctness of the above decision. But see infra, n. (b.)
newspaper establishment, and $500 for the type and printing apparatus, and the defendants (the vendors) covenanted that they would not publish, or aid or assist in the publishing of a rival paper, and fixed the measure of damages at $3000, the case from its peculiar nature and the total uncertainty of arriving at a correct conclusion as to the amount of damages, was held to be a fit and proper one for the application of the rule that the sum agreed upon should be regarded as stipulated damages, and not as a penalty. In this case, Chief Justice Nelson said : “ The next question presented is, whether the sum of $3000 is to be viewed as damages liquidated by the contract of the parties, or only in the light of a penalty ? There are many cases in the English books in which this question has been very fully examined and considered, but it would be an unprofitable consumption of time to go over them with a view or expectation of extracting any usesul general principle that could be applied to this case. (The following are the leading cases : Astley v. Weldon, 2 Bos. & Pul. 346 ; Barton v. Glover, Holt's N. P. R. 43, and note ; Reilly v. Jones, 1 Bing. 302; Davies v. Penton, 6 Barn. & Cress 216; Crisdee v. Bolton, 3 Carr. & Payne, 240 ; Randall v. Everest. 2 id 577 ; Kemble v. Parren, 6 Bing. 141. In our court are the following: Dennis v. Cummins, Johns. Cas. 297 ; Slosson v. Beadle, 7 Johns. R. 72 ; Spencer v. Tilden, 5 Cowen, 144, and note, p. 150; Nobles v. Bates, 7 id. 307 ; Knapp v Malthy, 13 Wend. 587.) From a critical examination of all these cases, and others that might be referred to, it will be found that the business of the court, in construing this clause of the agreement, as in respect to every other part thereof, is, to inquire after the meaning and intent of the parties; and when that is clearly ascertained from the terms and language used, it must be carried into effect. A court of law possesses no dispensing powers; it cannot inquire whether the parties have acted wisely or rashly, in respect to any stipulation they may have thought proper to introduce into their agreements. If they are competent to contract within the prudential rules the law has fixed as to parties, and there has been no fraud, circumvention or illegality in the case,