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Dennis v. Cummins.

the court is bound to enforce the agreement. Men may enter into improvident contracts where the advantage is knowingly and strikingly against them; they may also expend their property upou idle or worthless objects, or give it away if they please without an equivalent, in spite of the powers or interference of the court; and it is difficult to see why they may not fix for themselves by agreement in advance, measure of compensation, however extravagant it may be, for a violation of their covenant, (they surely may after it has accrued,) without the intervention of a court or jury. Can it be an exception to their power to bind themselves by lawful contract? We suppose not; and regarding the intent of the parties, it is not to be doubted but that the sum of $3000 was fixed upon by them “mutually and express ly," as they say, “as the measure of damages for a violation of the covenant, or any of its terms or conditions." If it be said that the measure is a hard one, it may be replied, that the defendants should not have stipulated for it; or having been thus indiscreet, they should have sought the only exemption, which was still within their power, namely, the faithful fulfilment of their agreement.

In the case of Astley v. Weldon, Lord Eldon repudiates the idea that had been thrown out in some of the previous cases, that if the sum would be enormous and excessive, considered as liquidated damages, it should then be taken as a penalty; and maintains the ability of the party to make a contract for himself in fixing the amount of damages as well as in respect to any other matter. All the judges adopt the position that the question must be determined upon the meaning and intent of the parties. A principle is stated in that case which has since been frequently applied, and upon which the case was finally disposed of, namely, that where a doubt appears whether the sum inserted be intended as a penalty or not, if a certain damage less than this sum be made payable upon the face of the instrument, in case the breach occurs, then the same shall be construed to be a penalty. It then partaker of the character of a common money bond, where the payment of a small sum is secured by the forseiture of a large one in case of default. In that case there were several stipulations in the articles of agreement, and then on either neglecting to perforın on his part, the “sum of £200, to be recovered in any of his majesty's courts of record,” was to be paid. Some of the breaches were in their nature uncertain, while others were certain, and as the £200 were given to secure the fulfilment of all of them, upon the principle above slated, the court concluded it was to be deemed in the light of a penalty. Chambre, J., (p. 345,) observed," that there was one case in which the sum agreed for inust always be considered a penalty ; and that is, where the payment of a sinaller sum is secured by a larger.” And he held that the court could not garble the covenants, and hold that in respect to those cer. tain the large sum was to be deemed a penalty, but damages liquidated as to those uncertain, as the concluding clause applied equally to all of them. The decision of the case of Kemble v. Farren, the strongest one in the books for the defendants, was put upon this principle by Chief Justice Tindall. There some of the stipulations were certain, such as the one in which the plaintiff

Dennis v. Cummins.

had agreed to pay the defendant £3 6s. 8d. every night in which the theatre would be open during the season ; others were uncertain. The language of the parties in fixing the sum in case of neglect to fulfil the agreement, or any of the stipulations, was as particular and specific as in the case under consideration, using affirmative and negative terms, to exclude the idea of a penalty ; but as it extended equally to the breach of every stipulation, those certain as well as those uncertain, the case was supposed to be brought direcily within the principle of Astley v. Welden. The chief justice concedes that it was difficult to suppose words more precise or explicit, and admitted that if the clause had been limited to breaches which were of an uncertain nature and amount, the court would have considered it as having the effect of ascertaining the damages of any such breach at the £1000; and he adds, “ for we see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree.” The case under consideration falls directly within the above distinction ; for the concluding clause here, securing the fulfilment of the preceding covenant, applies to stipulations wholly un. certain ; and it may be added, that from the nature of the case, it would be impossible for a court and jury to ascertain, with any degree of accuracy, the amount of damages actually arising out of the breach of them to the prejudiced party; and was, therefore, a very fit and proper case for the liqui. dation of the amount by the parties themselves. They have adopted the precise sum which the plaintiffs were to receive for the good will and patronage of the press, the very benefit which this clause was intended more effec. tually to secure to the purchasers.”

In the same case in the court of errors, (22 Wendell, 201, 211,) Chancel. lor Walworth observes, “ There is undoubtedly a class of cases in which courts have been in the habit of considering a certain specified sum as a penalty, whatever may be the language of the agreement. Such is the case wherever such specified sum is evidently intended as a mere collateral secur. ity for the payment of a different sum which is the real debt, or where it was Avidently intended to be in the nature of a mere penalty; and there is another class, where, from the language of the agreement, it was difficult to ascertain what the parties really intended, in which the courts have taken the reasonableness of the provision as liquidated damages into consideration, for the purpose of determining whether it was intended as such or only as a comminatory sum. Where the specified sum is declared by the parties to be a penalty, or wherever it appears to have been only intended to secure the payment of the real debt which is specified and ascertained, so that the court is legally bound to consider it as comminatory merely, the plaintiff must assign breaches, and have his damages assessed under the statute, except where the condition of the obligation is for the payment of a specific sum which is ca. pable of being ascertained by mere computation.”

In Hoag v. M'Ginness, (22 Wendell, 163, 164,) Mr. Justice Cowen states the doctrine very clearly in opposition to the opinion of Mr. Evans, that the penalty ought to be regarded as stated damages, unless there is somo

Dennis v. Cummins.

particular reason in the nature of the contract to the contrary, (see supra, n. a.) He remarks, “ But it would he a sufficient argument for withholding the penalty, is the question were equal whether the parties intended the payment of $100 for not giving the notice, or did not so intend. I do not think that penalties like this (for they are seldom any thing other than penalties,) should be favored. I yielded my assent to the opinion in Dakin v. Williams, (17 Wendell, 447,) for the reason which there governed the chief justice, viz. : because, on the wbole contract, we could not doubt the parties intended that the damages should be paid for violating the stipulation in question, and because it was difficult, wot to say impossible, from its nature, that the damages for a breach could be ascertained by a jury. The latter may be said of failing to give the five days' notice ; but we want the clear intent of the parties, that such an omission was to be punished by such a disproportionate fine. It is evidently upon that clear intent that Dakin v. Williams went; and that could the chief justice have brought himself to doubt, he would never have consented to apply the penalty. It is commonly hard enough in such cases that we should be bound by the letter; though such is the result of the cases, where liquidation is impossible. The creditor is a very apt apprentice in the art of enlarging any opening which the law leaves him for encroachment; while the debtor, especially if he be poor or embarrassed, is most complying ; and could he have his way, would prove his own worst enemy. Hence our usury laws, and the system of equitable relief against penalties. To allow of the use of penalties as damages, at the unlimited discretion of the parties, would lead to the nost terrible oppression in pecuniary dealings. The fair and just rights of the creditor are worthy ef all protection ; but no more than the debtor's right to exemption, from what is beyond an honest compensation to his creditor.” (See also Pearson v. Williams, 26 Wendell, 630; S. C. 24 Wendell, 244; Hasbrouck v. Tappen, 15 Johnson, 200; Gray v. Crosby, 18 id. 219; Ayres v. Pease, 12 Wend. 393.)

In Shute v. Taylor, (5 Metcalf, 61, 67,) Shaw, J., observes: "In general, it is the tendency and preference of the law, to regard a sum, stated to be payable is a contract is not sulfilled, as a penalty and not as liquidated damages; because then it may be apportioned to the loss actually sustained.” (Cowen v. Gerrish, 3 Shepley, 273. Watts v. Shephard, 2 Alabaina, 425. Owens v. Hodges, 1 M'Mullan, 106. Moore v. Platts County, 8 Missouri, 467. Bright v. Rowland, 3 Howard Miss. 398. See Chamberlain v. Bagley, 11 New Hampshire, 234; Hamilton v. Overton, 6 Blackford, 206; Hodges v. King, 7 Metcalf, 583 ; Gammon v. Howe, 2 Shepley, 250. See Chitty on Contracts, ed. 1848, p. 863–868, and notes ; 2 Starkie Ev. 5th Am. ed. 620; 2 Story Eq. Jur. ed. 1846, p. 747, § 1318; Story on Cont. ed. 1847, 99 1020,

People v. Franklin.

The People aga'nst FRANKLIN.

In an indictment for forging a bill of exchange or bank bill, it is not neces.

sary to insert the marks, letters or figures used in the margin of the bill, sor ornament, or the more easy detection of forgeries, as such marks or cyphers form no part of the bill.

The prisoner was indicted for forging a bill of exchange, drawn by George Desbrough, commissary.general of the British windward and leeward islands, on he commissioners of the Treasury in London.

The bill produced in evidence contained various letters and marks, in cypher, in the margin, which were used in the genuine bills, for the purpose of rendering the detection of forgery more easy, and which marginal letters or cyphers were omitted in the description of the bill in the indictment.

It was objected that the variance, in this respect, between the bill described in the indictment, and the one offered in evidence, was fatal.

Per Curiam. It was not necessary to insert the marginal cyphers or marks in the indictment, for they make *no part of the bill. It might as well be re- [*300] quired that the water-marks and a fac simile of all the engraved ornaments used in a bank bill, for the more easy detection of forgeries, should be inserted in an indictment.(a)(0)

(a) [Old note.] See Commonwealth v. Bailey, 1 Mass. Rep. 62.

(a) 3 Chilt. Cr. Law, ed. 1847, p. 1040, and votes. See 1 id. 176; Com. monvenlth v. Searle, 2 Binney, 322; The Same v. Binley, 1 Massachusetts, 62; The Same v. Stevens, id. 203 ; Hess v. The Slate, 5 Ohio, 208 ; 2 RusBel ou Crimes, ed. 1845, p. 372, et seq.

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Hildreth v. Harvey.

HILDRETH against Harvey, impleaded with BEECKER.

Where the attorney of a party dies, actual notice or warning must be given

to him to appoint another attorney. A notice put up in the clerk's office, or a notice of the proceedings in the cause, is not sufficient.

Van Vechten, for the defendant, moved to set aside the interlocutory judgment, final judgment and execution in this cause, on the ground that the defendant's attorney died be. fore the entry of the judgment, and that the defendant had not been warned to appoint a new attorney, pursuant to the directions of the act. (Sess. 24. c. 32. s. 5.) The affidavit which was read, also stated that the defendant had a good and substantial defence.

Emott, contra, read an affidavit, stating that the attorney lived in the same town with the defendant, who must have known when he died ; that a notice had been put up in the clerk's office, directed to the defendant, requesting him to appoint another attorney, and that notice of executing the writ of inquiry had been sent to the defendant, by post.

Per Curiam. The statute is peremptory and decisive, that “where any attorney shall die, or cease to act, or be put out of the roll, the person for whom he was attorney shall be warned to appoint another attorney in his place.” A constructive notice or warning is not sufficient, nor is it enough that the defendant knew of the death of his attorney.

A notice put up in the clerk's office, or of executing [*301] a writ of inquiry, is not such notice as the act *re

quires. The final judgment and execution must be set aside with costs; but the interlocutory judgment, having been entered previous to the death of the attorney, must stand. It appears to have been entered after argument on demurrer; and, according to the decision in Seaman v. Haskin, (2 Johns. Cases, 411,) it is too late after judgment

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