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, if 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 whole 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, not 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 most 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 if a contract is not fulfilled, 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 Alabama, 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, §§ 1020, 1021.)

People v. Franklin.

THE PEOPLE against 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, for 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 indict

ment.

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 margi nal 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 fuc 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)(b)

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

(a) 3 Chitt. Cr. Law, ed. 1847, p. 1040, and notes. See 1 id. 176; Commonwealth v. Searle, 2 Binney, 322; The Same v. Binley, 1 Massachusetts, 62; The Same v. Stevens, id. 203; Hess v. The State, 5 Ohio, 208; 2 Russel on Crimes, ed. 1845, p. 372, et seq.

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 *requires. 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

Hildreth v. Harvey.

is entered up, and the term over, to apply for leave to withdraw the demurrer.(a)

(a) It is provided by the revised statutes, that where any attorney or solici tor shall die, be removed or suspended, or cease to act as such, the person for whom he was acting, shall be notified to appoint another attorney or solictor, in such manner as the court shall direct, at least thirty days before any proceedings shall be had against such person. (2 R. S. 287, sec. 67.) Under this provision, personal notice, or such as the court would deem tantamount, must be given to the party; and a constructive notice, such as a notice of a proceeding in the cause, is not sufficient. (Given v. Driggs, 3 Caines, 150. 1 Grah. Prac. 3d ed. 244. Prac. ed. 1840, p. 95.)

See also 1 Burrill's Prac. 2d ed. 356; 1 Tidd's

END OF JANUARY TERM.