Anonymous (1813) 5 Taunt 249
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1813 |
| Date | 25 November 1813 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 685
Common Pleas Division
although six months from the date of the agreement had elapsed, and although the Plaintiff had performed the agreement on his part. Heywood contended that no such debt arose upon the recited agreement, as would justify the Plaintiff in holding the Defendant to bail in this case ; for that it did riot appear that any repairs had been pointed out by Shepherd to be done, or that Morgan was dissatisfied with the manner. of doing them. Neither was it fit that a Defendant should be holden to hail on a contract, on which a jury would be entitled to assess the damages really sustained, and they might be much less than the sum sworn to. Shepherd Serjt. shewed cause, contending that this sum was in the nature of liquidated damages, and that it was positively sworn to be due. MANSFIELD C. J. held that the Defendant ought not to be holden to bail. HEATH J. I think so too. It is a very great power which one man has over another ; the oath cannot be controverted ; and it ought to be very distinctly shewn on the affidavit that there is a debt. CITAMHRE J. I think the affidavit is insufficient. If the damages, as the Defendant's counsel observes, were [249] ever so small, the whole sum, if riot to be considered as a penalty, would be recoverable ; but in A stk.?' v. Weldon, 2 Boa. & Pull. 346, that circumstance determined the Court to hold the sum a penalty. But here I think the affidavit is not sufficient. Rule absolute to discharge the Defendant out of custody. ANONYMOUS. ù Plainly; ù Deforeiani. Nov. 24, 1813. Blosset Serjt. moved that a fine might pass as to all the couusors except as to one, whom acknowledgment had been taken incorrectly, and whose interest was so inconsiderable, that the parties did not think it worth while to have another fine from her. Fiat. LLOYD v. CRISPS. Nov. 25, 1813. If the vendor of a lease, in which is a covenant not to assign, contract to assign his interest, it is incumbent on him, and not on the purchaser, to procure the lessor's licence for the assignment.ùIf a covenant not to assign contain an exception in favour of assignment by will, semble, that executors claiming under the will are not within the exception, so as to be at liberty to sell for payment of debts without licence of the lessor. Per Mansfield C. J. This was an action of assumpsit : the declaration stated, that by an agreement made between the Defendants of the one part, and the Plaintiff of the other part, the Defendant iti consideration of 501. earnest then paid, and the further sum of 2911. 5s. to be paid to him by the Plaintiff at the time thereinafter mentioned, did thereby agree to sell and assign over unto the Plaintiff all his interest in the lease of the [250] Duke's Head, situate at Leatherhead, seven years of which were unexpired at Lady-day then last, subject to a rent of 181. 18s. per annum; also to a covenant to brew all beer sold on the premises, and buy the malt for that purpose of Mr. William Stone, of Leatberhead, which covenant, with others contained in the said lease, had then been read and explained to the satisfaction of the Plaintiff; and the Defendant did thereby agree further- to sell such part of his household furniture, fixtures, utensils, and effects then on the premises, arid that he might have a right to dispose of, at a fair appraisement, to be made by E. Imber and Co.; and the Defendant did also agree to sell his stock of beer, foreign and British spirits and wines, not exceeding 1501., the value of which should bo ascertained by two proper persons or their umpire ; and also to assign the beer and other licences, on being paid for the unexpired term therein ; to mend, or allow for, all external damaged windows, and clear the premises from all arrears of rent and taxes whatever up to the 29th day of September then next, which was the time mutually agreed on for...
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