1815. HARMAN ซ. GANDOLPH and Others. so doing. In the present case it is totally an indifferent circumstance that the ship is a general ship; all and every one, each singly for himself, is bound to clear within the stipulated time. If any one do not clear his goods, no matter from what cause (the ship being there with them) he detains the vessel, and renders it impracticable for the owner to make use of her for other purposes. Any one, therefore, in this default, is liable for the detention of the vessel. Thus, in Randall v. Lynch, 2 Camp. 352. it was determined by Lord Ellenborough, that if by reason of the crowded state of the London Docks, a ship is detained there before she can be unloaded a longer time than is allowed for that purpose by the charter-party, the freighter is liable for this detention to the owner of the ship. The cause of detention therefore is immaterial, if the owner be not in fault. If it be incidental, it is an incident belonging to the consignee; it is his mischief, his loss, his mis-, fortune. It is so much longer time beyond the contract taken from the owner; and being the casualty, if not the act of the consignee, he must pay for it. Though there may be no mutuality or privity between the consignees, yet, in regard to the owner, the delay or impediment of one is effectually the same as the delay or impediment of all. In respect to mercantile contracts, however, whatever may be the hardship in any particular case, the mischief will not be extensive; as contracts will gradually assume a form suitable to all possible contingencies. 1815. BARTON. GLOVER. ASSUMPSIT-Plaintiff and defendant were June 28. Where a person binds agreement to breach of the it is therein coach proprietors, at Croydon. On the 2d himself in an of April, 1815, they entered into an agreement, pay a certain the substance of which was, that in consideration in case of a sum of money that Barton would pay to the defendant the sum terms of it on of 175l.; 50l. to be paid in money, and the residue his part, and in bills of a month from the date of the agree- stated "that ment, the defendant would withdraw his stage tioned is to be coach from the road, and not engage or concern liquidated dahimself in driving any other stage coach on the mages," road from Croydon to London. The following tion upon the was the clause in the agreement on which the Jury are bound question arose : the sum men considered as Semble that in an ac agreement, the to give the plaintiff the whole money; and that such be considered but as damages parties "And for the due and punctual performance of sum is not to this agreement, each of the said parties to these as a penalty, presents does hereby agree to bind himself to the ascertained other of them in the sum of 500l. to be considered between the and taken as liquidated damages, or sum of money forfeited or due from the one party to the other, who shall neglect or refuse to perform his part of the agreement. 7 April 2, 1815." "JOHN GLOVER. Best, serjeant, in addressing the Jury for the plaintiff, insisted that he had a right to a verdict for the whole penalty, in case he should shew a breach of the agreement. Fletcher v. Dyche, 2 T. R. 32. 1815. BARTON v. GLOVER. The Solicitor General, contrà.-The 500l. is merely intended as a penalty. It is not because the parties use the term liquidated damages that, for every breach of the agreement however slight, the whole penalty can be exacted. Penalties can seldom be enforced conscientiously; courts of law lean against them, and courts of equity relieve against them. He cited Astley v. Weldon, 2 B. and P. 346. GIBBS, C. J.-There are a great many cases in which stipulated damages are contracted for, but in which neither courts of law nor equity will permit the parties to recover them. Neither of the cases cited comes up to the present. In Astley v. Weldon, there was no stipulation that the damages should be liquidated; and in that case there were several minor fines, which repudiated the idea that the whole penalty should be due for every breach. But in the present case, unless the damages are to be considered as liquidated, and definitively ascertained by the parties themselves, the clause in the agreement means nothing. His Lordship said, he would reserve the point; but the cause was afterwards referred. Best and Copley, serjeants, and Puller, for plaintiff. Solicitor General, and Lens, serjeant, for defendant. [Attornies, Holt and F. and Allen.] In Smith v. Dickenson, 3 B. and P. 630, the Court of Common Pleas expressed themselves clearly of opinion, that the word "penalty," used in the agreement, effectually prevented them from considering the sum mentioned as liquidated damages. In actions brought for the breach of covenants and agreements, there has sometimes been a difficulty in distinguishing between penalties and liquidated damages. The fair result of the cases seems to be this 1. Where a sum of money, whether in the name of a penalty or otherwise, is introduced in a covenant or agreement, merely to secure the enjoyment of a collateral object, the enjoyment of the objest is considered as the principal intent of the deed or contract, and the penalty only as accessary, and therefore only to secure the damage really incurred. This rule has long been established in courts of equity, and the statute 8 and 9 Wm. 3. has introduced this practice, and affords the same benefits to defendants at common law; for it is no longer now matter of election in the plaintiff to proceed under this statute: the provisions are compulsory, and must be 2. Where a deed contains 3. Where the payment of a smaller sum is secured by a larger. 4. Where the word penalty 5. A court of equity will 1815. BARTON v. GLOVER. 1815. BARTON v. GLOVER. the injury will be the measure of damages which the plaintiff will recover. But if it be worded to pay 57. an acre for every acre ploughed up; there is no alternative; no room for any relief against it; no compensation; it is the substance of the agreement. 6. Where the precise sum, therefore, is not of the essence of the agreement, the quantum of damages may be assessed by a Jury; but where the precise sum has been fixed and agreed upon by the parties, that very sum is the ascertained and liquidated damage; the Jury are confined to it, and the plaintiff cannot recover beyond it. For example, where a stipulated sum has been claimed for breach of a marriage contract; in which case it might not be possible to ascertain precisely what damages the person, in respect to whom the contract is broken, has sustained; and therefore the contracting parties agree to pay a stipulated sum: in such case, the sum stipulated is, by the convention of the parties, the real debt, and becomes due, in integro, on a breach of the contract. 7. But in all articles guarded by penalties, there are two remedies to be pursued at the option of the party injured: he may, as often as the articles are broken, have, toties quoties, an equitable relief, upon the footing of the articles themselves, for a partial breach of contract, or he may take the penalty. That is to say, where there is a penalty and covenant in the same deed, the party has his election either to bring debt for the penalty, or an action on the covenant for damages. In the former case, the contract is rescinded, and the penalty becomes the debt in law; subject of course to relief in equity, and to the restrictions by the mode of proceeding under the 8 and 9 Wm. 3d, in a court of law; and if the penalty be paid, according to the stipulation of the articles, or be recovered as the debt in law, the party cannot resort back to his covenant or action for the breach of the contract. But he may elect to bring his action on the contract, and, according to the nature of the case, may recover even beyond the amount of the penalty in damages. Ponsonby v. Adam, 6 Br. Parl. Cas. 418. Harrison v. Wright, 13 East, 343. Rolfe v. Peterson, 6 Br. Parl. Cas. 470. Sloman v. Walter, 1 Brown. Cas. in Chanc. 418. Hardy v. Martin, ibid. 419. |