540

Superior Courts: Queen's Bench.-Exchequer.

when one ground of objection only has been when a verdict was entered for the plaintiff for taken by an appellant, should therefore be con- 950l., subject to a motion to enter a verdict for clusive proof of the right of exemption for all the defendant, if the court should be of opinion time, against all persons, and notwithstanding that the 1,000l. should, under the circumother objections, make it improbable that par- stances, be regarded as a penalty. liament intended to give it that effect. The words do not express such an intention, and the determination by the sessions that a certificate shall not be annulled on account of the alleged objections may be conclusive as to them, and the certificate may fulfil the conditions required, so far as they are declared untouched by the grounds of appeal, without having the effect of either fulfilling the other conditions, or being conclusive in respect to them.

The Attorney-General now moved for a rule to show cause why the verdict should not be entered for the defendant. Where, as in this case, there may be several breaches of the agreement, and the injury resulting from some of those breaches may be very trifling, and from others very important, the law will not allow the sum stated in such agreement to be regarded as liquidated damages, even though it be expressly stated to be so by the parties. The words "stipulated damages" in this case must therefore be rejected. Where there are several things to be done, or not to be done, the parties must stipulate for each separate act, and not for

The fifth section of the act gives an analogous appeal in case of refusal of a certificate by the barrister, and makes the final filing of the rules of the society by order of the court of quarter the whole collectively. By the construction sessions to have the same effect as if the barrister had certified. That is the effect a certificate has, if it is not annulled on appeal under the sixth section, but no conclusive effect is given to such judgment on appeal. Therefore, we are of opinion that the claim of exemption is not sustained by the certificate, nor by the other facts of the case, and it follows the verdict must be for the Crown on all the issues.

sought to be put upon this agreement, if the defendant influences any one client he is liable to the full sum of 1,000l., and so on for every client whom he may influence, but he may carry on the business within 50 miles for ever, and it is but one breach. [Parke, B., observed, that in all cases it was a question of construc tion upon the whole instrument.] There cannot be two rules of construction for the same covenant. [Alderson, B. In some cases it might be an absurdity to assess the damages according to the literal construction; for instance, where a penalty is consequent upon the nonpayment of a certain sum of money, to pay a much larger sum would be absurd; but when it is not for a specific payment, surely the value of any loss at the amount specified.] the party must be supposed to have estimated It certainly is very necessary there should be some fixed rule. [Platt, B. How is this case M. & W. 187] In that case the penalty was distinguishable from Rawlinson v. Clarke, 14 for doing a certain act; there were various modes of doing it, and the penalty was for doing the act either of the different ways. He cited Kemble v. Farren, 6 Bing. 141; Boys v.

Aliter, where the covenant is for the nonpay- Ancell, 5 Bing. N. C. 395; Green v. Price, ment of a sum certain.

Whether the words "liquidated damages may be rejected, is, however, a question of construction in all cases.

13 M. & W. 701; Beckham v. Drake, 8 M. & W. 846; Horner v. Flintoff, 9 M. & W. 681.

Parke, B. In this case if the defendant sets up in business within 50 miles of Ely Place, or solicits or influences in any way any of the In this case the plaintiff and the defendant clients, then he stipulates that he will pay in had been in partnership as attorneys. On the any one of those cases 1,000l., and he is not 19th January, 1841, arrangements were made under any circumstances bound to pay more. by which the partnership was dissolved, and We cannot say what damage a man sustains Strutt entered into an agreement not to carry in any particular case, and in order to avoid on business within 50 miles of Ely Place, or any question the parties are competent to solicit or influence in any way any of the clients make any regulation they may think fit. of the co-partnership, or to pay 1,000l. as Here the parties, I think, stipulated for liquidated damages and not as a penalty. the payment of the sum of 1,000l. in any An action was subsequently brought by the of the events mentioned. The doctrine that plaintiff against the defendant for a breach of this the words "liquidated damages" may be reagreement, in which the defendant pleaded pay-jected is not supported by the case of Kembley. ment into court of 507. and no damages ultra. Farren; there Lord Chief Justice Tindal, in The plaintiff replied, damages ultra, upon which giving judgment, says," It is undoubtedly issue was joined. difficult to suppose any words more precise or The cause subsequently went down to trial, explicit than those used in the agreement; the

Superior Courts: Exchequer.-Analytical Digest of Cases.

541

If

same declaring, not only affirmatively that the failing to pay 31. 3s. ; in such cases the damages sum of 1,000l. should be taken as liquidated stated must be taken as the extreme amount; damages, but negatively also that it should not but if there is an uncertainty as to the amount be considered as a penalty or in the nature of damages, where is the absurdity in the parties thereof. And if the clause had been limited to fixing the sum for the breach of either or all breaches which were of an uncertain nature and the covenants? Therefore, where the parties amount, we should have thought it would have say that in the case of a breach of either they had the effect of ascertaining the damages upon shall pay 1,000l., this is not unreasonable. The any such breach at 1,000l." That is exactly damages may vary; in some cases they may be this case. His lordship then goes on to ob- great, and in some small; here in either case serve," For we see nothing illegal or un- they agree as to the amount of the damages, reasonable in the parties, by their mutual agree-yet if found by the verdict of a jury, the amount ment settling the amount of damages, uncer- would be different; this the parties have entain in their nature, at any sum upon which deavoured to prevent by fixing the amount. they may agree. In many cases such an agree- the parties in Kemble v. Farren had expressly ment fixes that which is almost impossible to stated that upon the breach of 31. 6s. 8d. the be ascertained, and in all cases it saves the ex- penalty should be the payment of 1,000l., I am pense and trouble of bringing witnesses to that not prepared to say that would not have been point." Here the stipulation for 1,000l. was binding. In Rawlinson v. Clarke the agreean exposition of the intention of the parties. In Green v. Price I put the same interpretation on Kemble v. Farren. There the argument proceeded upon the absurdity of paying 1,000l. for the nonpayment of 31. 6s. 8d. In this case, although the damages may be different if the business should be interfered with at different times, still as the parties have agreed that in any of these cases the 1,000l. should be paid, I think they are bound by that amount. This is in fact a question of construction.

ment was, that the defendant would not in any way carry on the profession of a surgeon and apothecary, or either of them, by residing or visiting any patient within three miles from his then place of business, and that 500l. was to be the amount of damages for acting in either capacity in either of the ways mentioned. There the damages sustained were estimated by the jury at 71. 7s., and yet the court held the damages properly assessed at 500l. for the same reasons as were stated by the court in Green v. Price.

Platt, B. There is no ground for altering the distinct words of the agreement. The intention of the parties was clearly, that in the event of any of the breaches taking place, the liquidated damages should be 1,000l. This case is not distinguishable from Rawlinson v. Clark.

Alderson, B. It is in all cases a question of construction upon the whole of the instrument; where the damage is definite, and where the sum also is definite, if the parties set a much larger sum, it is not reasonable that they could have intended it, as, in Kemble v. Farren, it would be unreasonable to hold that the parties really intended to pay 1,000l. for a breach by the nonpayment of 31. 6s. 8d.; and in the case of Beckham v. Drake it is not reasonable to suppose court. the intention to have been to pay 500, upon

Pollock, C. B., agreed with the rest of the

ANALYTICAL DIGEST OF CASES.

REPORTED IN ALL THE COURTS.

Rule refused.

Registration of Voters' Appeals, pp. 15, 347. Criminal Law, 523.

Law of Attorneys, p. 42.

Law of Railways, pp. 71, 178.

Costs, p. 197.

Courts of Equity:

Law of Wills, p. 121.

Construction of Statutes, p. 149.

Principles of Equity, p. 222.

Pleading, p. 241.

Practice, p. 268.

Evidence, p. 299.

Construction of Statutes, p. 373.

Courts of Common Law:

ACT OF BANKRUPTCY.

Notice.-Notice that a trader has filed a declaration of insolvency is notice of an act of bankruptcy at that moment, if a fiat afterwards issues within two months. Green and others v. Lawrie and others, 35 L. O. 121.

ADJUDICATION.

Construction of 5 & 6 Vict. c. 122.-The five days allowed in the stat. 5 & 6 Vict. c. 122, s. 23, for disputing an adjudication, are to be calculated exclusive of Sunday, even if Sunday

Grounds of Actions and Principles, pp. 396, should not be the last of such five days. Re

415.

Bruce and Morrison, 35 L. O. 103.

1&2 Vict. c. 110.-A Commissioner to whom

2. Title of the Court.-Affidavits by country creditors to support proofs of debts, must be a bond is submitted under the 1 & 2 Vict. c. entitled "In the Court of Bankruptcy in Lon-110, will not enter into an investigation as to don." If the words "in London " the nature or validity of the debt. the affidavits will be rejected. Exparte Hyams, 34 L. O. 548.

be omitted

3. Execution of bond.-A Commissioner will not approve of a bond given under the stat. 1 & 2 Vict. c. 110, s. 8, unless the trader-debtor, at the time the bond is submitted for approval, produces an affidavit of execution by the sureties. Lancaster and Preston Fire and Life Insurance Company v. Davis, 35 L. O. 177. See Trader Debtor's Summons, 2.

ANNULLING FIAT.

See Petitioning Creditor.

APPRENTICE.

Allowance for fee.-Held, That the 6 Geo. 4, c. 16, s. 49, which authorises a Commissioner to order a sum to be paid out of a bankrupt's estate, on behalf of an apprentice, only applies when the fiat operates as a discharge of the indentures of apprenticeship.

bond should be for 1,000l. beyond the sum When the sum sworn to exceeds 2,000l., the sworn to, but a bond in a smaller amount may be entered into with the consent of the debtor. In re Brodie, Exparte King, 35 L. O. 414. And see Affidavit, 3; Trader Debtor's Sum-" mons, 1.

CERTIFICATE.

Semble, That when a fiat issues against a Committal for unsatisfactorily answering.—A: jewel-case maker, who also carries on the busi- bankrupt will not be allowed to be brought up ness of an architect, the fiat does not discharge for re-examination, except at his own expense, the indenture of an apprentice to the business after having been twice examined and com of an architect. In re Hammon, Exparte Davi-mitted for unsatisfactory answers, when there son, 35 L. 0.464. are grounds for expecting a satisfactory exami nation. Re Rothery, 35 L. O. 63.

ARREST.

See Lien, 1.

FRAUD.

INSPECTION OF BOOKS.

The Court will not permit the solicitor for a creditor, who has not proved his debt, to inspect the bankrupt's books, unless it be clearly for the benefit of the estate. In re Grylls and others, 35 L. O. 332.

LIEN.

1. Fraudulent removal of goods.-A bankrupt who had given a lien on certain goods, by fraud obtained possession of them, and rendered them undistinguishable by mixing them with other goods of the same sort, but the Court gave effect to the lien to the extent of the goods or their value. Exparte Bell, in re Tunstall and Cash, 35 L. O. 98.

2. Covenant, satisfaction of. A bankrupt having covenanted to buy a house and settle the same to certain uses on his marriage, or to invest a sum to effect such a purchase, did not either buy the house or make the investment within the time limited. He afterwards bought a house for a larger sum, and then mortgaged that and other property which had been de vised to him, and became bankrupt. The mortgage money came into the hands of the assignees: Held, that the money covenanted to

Analytical Digest of Cases: Bankruptcy.

543

be laid out formed a lien on that mortgage s. 56. Exparte Meyer, In re Meyer and Brownmoney, and was to be satisfied out of so much smith, 35 L. O. 441. of the same as represented the house bought by the covenantor, and that the remainder, if any, was to be a charge on the equity of redemption of the property devised to him. Exparte Poole, in re Symes, 35 L. O. 368.

MARSHALLING ASSETS.

See Mortgage.

Stock-in-trade.

MORTGAGE.

Distress for rent.

3. Surety.-Payment after fiat.-The debt of a surety subsisting when the fiat issued, but paid subsequently, is proveable against the estate of a bankrupt principal, under the 6 Geo... 4, c. 16, s. 52. In re Bridgland, Exparte Metzler, 35 L. O, 523. See Benefit Society.

RAILWAY ACT.'

out of Court to the person formerly tenant in tail, but no costs were given as against the company. Exparte Thoroton, in the matter of the Midland Railway Company, 35 L. O. 343.

The purchase money of an estate taken by a Mar- railway company (the estate tail in which was shalling. A trader had mortgaged his stock- subsequently barred) was ordered to be paid in-trade and goods; he retained possession and added to his stock. The landlord distrained for rent, and sold part of the goods, and then the trader became bankrupt: Held, that the mortgagee was only entitled to the remaining furniture and stock that existed at the time of the mortgage: Held, also, that the mortgagee had a right, as against the assignees, to the benefit of the doctrine of marshalling. Exparte Stephenson, in re Stephenson, 35 L. O. 326.

NOTICE.

See Act of Bankruptcy; Trader Debtor's Summons, 1.

OFFICIAL ASSIGNEE.

Omission.-Costs.-A proof of a debt having been made and a dividend declared, but the name of the creditor having been omitted in the dividend list, whereby the whole estate had been divided among the other creditors, the official assignee was held to be personally answerable for the amount of the proof to which the creditor would have been entitled had his name been included in the list, and for the costs. Exparte Hall, in re Carey, 34 L. O. 599.

PETITION.

See Service of Petition.

PETITIONING CREDITOR.

Annulling fiat.-Petitioning creditor out of the jurisdiction.Where the petitioning creditor's debt is not proved, and he resides out of the jurisdiction, and the solicitor to the fiat declines to appear for them in an action, the fiat will be annulled with costs. Exparte Wightman and Collier, In re Wightman and Collier, 35 L. O. 344.

PROOF OF DEBT.

1. Security by drawer of bill.-Where the drawer of a bill deposits security with a party discounting, and the acceptor becomes a bankrupt, the holder may prove against the estate of the bankrupt acceptor without giving up the security deposited by the drawer. In re Willis, 35 L. Ô. 267.

2. Payable upon contingency. Held. by Commissioners Evans and Shepherd, (Fane dissentiente,) that when the bankrupts gave an indemnity bond, but no default had taken place, and no debt was in fact due at the date of the fiat, there was no contingent debt proveable within the meaning of the stat. 6 Geo. 4, c. 16,

See Mortgage.

RENT.

REVIEW, COURT OF.

Orders made by the Court of review previous to its abolition, are not by the statute 10 & 11 Vict. c. 102, prevented from being executed. Exparte Norton, re Robinson, 35 L. O. 344.

SERVICE OF PETITION.

A petition by some of the directors of a railway company, and which was served on the petitioning creditor and official assignee, seeking to annul a fiat issued against the company after its dissolution under the provisions of the act 9 & 10 Vict. c. 28, was ordered to stand over, that service of it might be made on others of the directors who did not coincide in the view of the petitioners. Exparte Morrison, in re the London and Birmingham Extension Railway Company, 35 L. O. 64.

SURETY.

See Proof of Debt, 3; Trader Debtor's Summons, 3.

TRADER DEBTOR'S SUMMONS.

1. Sufficiency of notice.-Sufficiency of bond. -A notice accompanying affidavits of sufficiency by sureties need not state that the sureties are housekeepers or freeholders. When a bond proposed to be given under the stat. 1: & 2 Vict. c. 110, in addition to the ordinary condition prescribed by the statute contained the words, "or shall be released by the plaintiff in such action:" Held, that these words were surplusage, and did not invalidate the bond. In re Glover, 34 L. O. 614.

2. Affidavit of good defence to part, without admitting residue.-An affidavit to which the defendant deposes to a good defence as to part only of a debt, and makes no admission as to the residue, is not in compliance with the provisions of the statute 5 & 6 Vict. c. 122, and/ amounts to an act of bankruptcy on the part of the debtor. Nicholson v. Pink, 35 L. O. 14.59 mi

3. Sufficiency of sureties:- The objection that one of the sureties to a deed given by al debtor under the stat. 1 & 2 Vict. c. 110, if a member of parliament, is not necessarily fatal. Hallet v. Lee, 35 L. O. 42.