33. On an Agreement to recover a Sum of Money agreed to be paid by Defendant to Plaintiff, Plaintiff agreeing, upon Payment, to grant a Lease to Defendant.

Baggalley v. Pettit, 5 C. B. N. S. 637. [Declaration on an agreement for a lease. Implied covenant for title. Stranks v. St. John, L. R. 2 C. P. 376.]

34. By Tenant against Landlord upon a Contract, not under Seal, of Demise to the Plaintiff, with an Option of Purchase, for not making a Good Title.

Worthington v. Warrington, 5 C. B. 635.

35. For not putting Plaintiff into Possession, the Defendant having let the Premises to him by a present Demise, not under Seal.

Coe v. Clay, 3 M. & P. 57; 5 Bing. 440; Drury v. Macnamara, 5 El. & Bl. 612; Jinks v. Edwards, 11 Ex. 775.

36. By a Tenant against a Landlord, for not sending Furniture into a House pursuant to an Agreement under which the Plaintiff had become Tenant.

Mechelen v. Wallace, 7 Ad. & E. 49.

37. Form, showing that the Landlord had not Title to demise. Brashier v. Jackson, 6 M. & W. 549; Messent v. Reynolds, 3 C. B. 194.

38. By a Lessee against his Lessor for Breach of his Covenant for Quiet Enjoyment, alleging a Distress by the Ground Landlord. (q) For that the defendant, by deed, demised and let to the plaintiff a messuage [&c.] and premises to hold to the plaintiff for years, from the day and the defendant thereby covenanted with the plaintiff that he, the plaintiff, his executors, administrators, and assigns, paying [&c.] (r) and observing [&c. as in the covenant], should and might peaceably and quietly

of

A. D.

not for good title. Bandy v. Cartwright, 8 Ex. 813; [Hall v. City of London Brewery Co. 31 L. J. Q. B. 257.] As to the construction of covenants for title and quiet enjoyment, see Young v. Raincock, 7 C. B. 310, 340. [The implied covenants for title and quiet enjoyment are limited to the duration of the lessor's estate, and cease upon its determination. Adams v. Gibney, 6 Bing. 656; and see Williams v. Burrell, 1 C. B. 402; Penfold v. Abbott, 32 L. J. Q. B. 67. The measure of damages for a breach of the covenant for quiet enjoyment is the value of the lease. Williams v. Bur rell, 1 C. B. 402; Lock v. Furze, 34 L. J. C. P. 201; 35 Ib. 141; 19 C. B. N. S. 96.]

(9) [Lock v. Furze, 19 C. B. N. S. 96.] The word "demise "implies this covenant; Line v. Stephenson, 5 Bing. N.C. 183; 6 Scott, 447; so also does the word "grant." Barber v. Harris, 9 Ad. & E. 532; [Moore v. Weber, 71 Penn. St. 429; Gallup v. Albany R. R. 7 Lansing, 471. That is, these words imply a covenant for quiet enjoyment during the period of the lessor's interest in the premises. Penfold v. Abbott, 32 L. J. Q. B. 67.] But in deeds executed since 1st October, 1845, the words "give" and "grant shall not imply any covenant in law; 8 & 9 Vict. c. 106, s. 4; the words warrant and defend," occurring in a lease, amount to an express covenant. Williams v. Burrill, 1 C. B. 402. An implied covenant is qualified and restrained by an express covenant for quiet enjoyment. On a parol demise there is an implied agreement v. Dyer, 5 B. & Ad. 584; Briant v. Pilcher, for quiet enjoyment during the term, but 6 C. B. 354; ante, 155, note (l).

(r) The payment of the plaintiff's rent is not a condition precedent to the perform ance by defendant of his covenant. Dawson

have, hold, occupy, possess, and enjoy the said demised premises for and during the said term, without the let, suit, trouble, denial, interruptions, protestations, or disturbance of him, the defendant, his heirs or assigns, or any other person or persons lawfully claiming or deriving, or to claim or derive, by, from, or under, or as trust for him or them, or any or either of them, or by or through their or either of their acts, means, defaults, or procurement; and although the plaintiff hath performed all conditions [&c. as ante, 39], *yet, after the said demise and during the said term, a distress was lawfully made by A. B. on the goods of the plaintiff upon the demised premises for £ arrears of rent then due and owing from the defendant to the said A. B., as ground landlord of the said premises, whereby the plaintiff was put to great trouble and inconvenience, and disturbed in his possession of the said premises, and was obliged to and did pay the said sum of £- and £for the charge of the said distress.

39. A Similar Form, but alleging as a Breach that Plaintiff was

evicted. (8)

As in the preceding form to the *.] Yet after the said demise and during the said term, A. B., who, at the time of the demise to the plaintiff and thence hitherto, claimed to have and had lawful right and title to the said demised premises and the possession thereof by, through, and under the defendant, entered into the said premises and evicted the plaintiff therefrom [or "molested and disturbed the plaintiff in the possession thereof," if there has been no actual eviction; see Carpenter v. Parker, 25 L. J. C. P. 78-88, per Willes J.]. 40. By a Tenant against his Landlord, for not allowing him for Offgoing Crops, according to the Custom of the Country. (t) See a form in such case on a covenant in a lease. Newson v. Smythies, 28 L. J. Ex. 97; 3 H. & N. 840; Hutton v. Warren, 1 M. & W. 466.

(s) See a form of declaration in Carpenter v. Parker, 3 C. B. N. S. 206. As to what is an eviction, Ib. ; [1 Chitty Contr. (11th Am. ed.) 512, note (b); 2 İb. 1081, note (c); Upton v. Townend, 17 C. B. 30, 64; Lounsbery v. Snyder, 31 N. Y. 514; Gilhooley v. Washington, 4 Comst. 217; Edgerton . Page, Hilton, 320; 20 N. Y. 281; Royce v. Guggenheim, 106 Mass. 201; Elliot v. Aiken, 45 N. H. 30; Greton v. Smith, 33 N. Y. 245, 249; Jackson v. Eddy, 12 Missou. 209; 3 Kent, 454, note (ƒ).] An entry and distress for land-tax due from the lessor before the demise to plaintiff is not a disturbance by any one claiming under the lessor; it is a claim against him; Stanley v. Hayes, 2 Q. B. 105; semble, plaintiff might have paid the tax, and sued for money paid. The entry by the third party claiming lawful title is not the less a breach of covenant, because the plaintiff may have instigated him to enforce his claim; Young v. Raincock, 7 C. B. 310; see Neale v. Willie, 3 B. & C. 533; see a form by a lessee of a mine against the lessor for breach of covenant for quiet enjoyment by molestation

and disturbance by the lessor in working iron-stone between the mine and surface, and causing roof of mine to fall in; Shaw v. Stenton, 27 L. J. Ex. 253; 2 H. & N. 858; form by lessee against lessor for breach of the covenant for quiet possession; Dawson v. Dyer, 5 B. & Ad. 584; by the assignee of a lessee v. lessor for eviction; Brookes v. Humfreys, 5 Bing. N. C. 55; 7 Dowl. 118; Stanley v. Hayes, 3 Q. B. 105; against executor of lessor in such case; Adams v. Gibney, 6 Bing. 656; see form, &c. by a mortgagor against a purchaser, for not keeping plaintiff indemnified against the mortgagee, Allard v. Kimberley, 12 M. & W. 410; and other forms on indemnities, ante, 155, 156, a refusal by the defendant to let the plaintiff into possession will not support a declaration charging that defendant evicted the plaintiff. Hawkes v. Horton, 5 Ad. & E. 367.

(t) Where, by custom, the incoming tenant pays the value of the fallows, &c. and the tenancy is determined so that there is no incoming tenant, there is an implied contract on the part of the landlord to pay the value. Faviell v. Gaskoin, 7 Ex. 723.

41. By Outgoing Tenant against the Assignees of the Reversion on a Contract or Custom of the Country by which, on notice to quit by the Landlord, the Tenant is entitled to be paid for Tillages.

Womersley v. Dally, 26 L. J. Ex. 219.

42. By a Lessee against the Assignee of the Lessor for a Breach of Covenant in not destroying Rabbits on a Farm.

Sturgeon v. Wingfield, 15 L. J. Ex. 212; 15 M. & W. 224; Martin v. Williams, 1 H. & N. 187.

43. By Lessee against Lessor, on Covenant by Defendant in Consideration of the Surrender of the Term to pay for Manure, Tillages, &c. upon a Valuation.

Newson v. Smythies, 28 L. J. Ex. 97; 3 H. & N. 840; 1 F. & F. 447.

44. By Assignee of the Lessee against the Lessor for Breach of his Covenant to repair, whereby the Plaintiff was injured in his Trade and compelled to remove. (u)

Green v. Eales, 2 Q. B. 225.

LIMITATIONS, STATUTE OF.

Count on a Conditional Promise to pay a Debt barred by the Statute of Limitations. (x)

For that whereas heretofore and more than six years next before the making of the defendant's promise in this count mentioned, to wit, on the 1st day of January, A. D. 1839, the defendant was indebted to the plaintiff in £100 for money payable by the defendant to the plaintiff [&c.; state the debt as usual], and six years from the time the plaintiff's cause of action thereon accrued had elapsed, and the right of action of the plaintiff against the defendant for the recovery of the said money had, by reason of such lapse of time, but not otherwise, become barred by virtue of the statute in such case made and provided, and at the time of the making of the promise next mentioned, and thereupon the said money being wholly unpaid and in arrear to the plaintiff,

(u) A landlord is under no obligation to repair demised premises unless he has expressly contracted to do so; Gott v. Gandy, 2 El. & Bl. 845; what are sufficient words to create such a contract or covenant, Cannock v. Jones, 3 Ex. 233; 5 Ib. 713.

(x) See [2 Chitty Contr. (11th Am. ed.) 1261 et seq.]; see a form, &c. Lechmere v. Fletcher, 1 C. & M. 623; Waters v. Earl of Thanet, 2 Q. B. 757. It would seem that the common form of declaration would suffice where the conditional contract has become absolute, creating a liability to pay the debt instanter. See Humphreys v. Jones,

14 M. & W. 1; Hart v. Prendergast, 14 M. & W. 741; per cur. Earle v. Oliver, 2 Ex. 71-90; Higgins v. Hopkins, 3 Ex. 163; Smith v. Thorne, 18 Q. B. 134; [Betton r. Cutts, 11 N. H. 170; 2 Chitty Contr. (11th Am. ed.) 1261, 1263.] But there are cases in which the new promise or acknowledg ment may be so qualified as to render it advisable to frame a special declaration, as where the promise is to pay in a particular manner, by bill or note, or out of a particular fund, or at a certain time after demand. Waters v. Earl of Thanet, 2 Q. B. 757; [2 Chitty Contr. (11th Am. ed.) 1263 et seq.]

and the plaintiff being justly entitled to receive the same; the defendant, within six years next before the commencement of this suit, to wit, on the 1st day of January, A. D. 1845, in consideration of the premises, by a certain memorandum in writing, then signed by him, promised the plaintiff to pay the said moneys to him, the plaintiff, when [&c.; state the terms of the defendant's promise]; and although [aver the happening of the condition], and all conditions have been performed and fulfilled, and all events and things have existed and happened, and all periods of time have elapsed to entitle the plaintiff to a performance of the defendant's contract, and to enable him to maintain this action; yet the defendant hath not paid the plaintiff the said sum of £— [or, hath not made or delivered to the plaintiff a "bill," or "promissory note," &c. according to the terms of the contract. Add account stated].

LIQUIDATED DAMAGES.

OBS.-Whether a specified sum is to be treated as a "penalty," i. e. a sum merely intended to cover any damage which may be actually incurred, or as "liquidated damages," i. e. a sum agreed to be paid for a breach of contract, without reference to the extent of the injury sustained, depends in each particular case on the intention of the parties, to be collected from the language they have used. The intention is not determined by the mere use of the word "penalty," or the words "liquidated damages," but by the nature of the provision and the language of the whole instrument. But if the instrument contains many stipulations, of varying importance, or relating to objects of small value calculable in money, there is the strongest ground for supposing that a stipulation, applying generally to a breach of all or any of them, was intended to be a penalty and not liquidated damages. Dimech v. Corlett, 12 Moore P. C. 199; Sparrow v. Paris, 31 L. J. Ex. 137; [7 H. & N. 594;] Kemble v. Farren, 6 Bing. 141; Green v. Price, 13 M. & W. 695 (in error), 16 M. & W. 346; see forms, ante, 135, 136, and Sparrow v. Paris, ubi sup. ; Galsworthy v. Strutt, 1 Ex. 659; Mercer v. Irving, El., Bl. & El. 563; 2 Chitty on Pl. 219, 7th ed.; [2 Chitty Contr. (11th Am. ed.) 1314 et seq.; Whitefield v. Levy, 6 Vroom, 149; Bagley v. Peddie, 5 Sandf. 192; Perkins v. Lyman, 11 Mass. 76; Williams v. Dakin, 17 Wend. 447, 455; S. C. 22 Wend. 201; Heard v. Bowers, 23 Pick. 455; Shaw C. J. in Shute v. Taylor, 5 Met. 61, 67; Hodges ». King, 7 Met. 583, 588; Beale v. Hayes, 5 Sandf. 640; Hoag v. McGinnis, 22 Wend. 163; Chamberlain v. Bayley, 11 N. H. 234, 240; Brewster v. Edgerly, 13 N. H. 275; Gammon v. Howe, 14 Maine, 250; Lingley v. Cutler, 7 Conn. 291; Davis v. Gillett, 52 N. H. 126, and cases cited. Upon the breach of a contract secured by a penalty, the plaintiff may either sue for the penalty, assigning the breach in which case he can recover the damage actually sustained, not exceeding the amount of the penalty; or he may sue for unliquidated damages for the breach, to be assessed by the jury irrespectively of the penalty. In the former case the recovery of the full penalty will be a satisfaction for all breaches of the contract, but in the latter the plaintiff may sue toties quoties there are breaches, and recover a full indemnity. See per Lord Mansfield in Lowe v. Peers, 2 Burr. 2225, 2228; Winter v. Trimmer, 1 W. Bl. 395; Harrison r. Wright, 13 East, 343; Astley v. Weldon, 2 B. & P. 346; 1 Wms. Saund. 58; Bramwell B. in Betts v. Burch, 4 H. & N. 506, 510. Where the plaintiff sues for liquidated damages the non-payment of the damages must be assigned as a breach of the contract, otherwise the count will be taken as claiming unliquidated damages, and the jury may assess a smaller sum; Hurst v. Hurst, 4 Ex. 571; where the contract is alternative, either to do a thing or to pay a liquidated sum, the breach must negative both the alternatives. Leigh v. Lillie, 6 H. & N. 165. The plaintiff cannot sue for the liquidated damages payable on a breach of the contract and also claim an injunction to restrain the breach, but he may sue for unliquidated damages for a breach

OBS. and also claim an injunction. Carnes v. Nesbitt, 7 H. & N. 778. On a bond conditioned not to carry on a business within certain limits or to pay liqui dated damages, an injunction may be granted to enforce the condition. Howard v. Woodward, 34 L. J. Ch. 47.

Count on a Covenant in a Deed of Sale of a Business, to pay Liquidated Damages in the event of Defendant carrying on the Business.

day of A. D.

That by a deed bearing date the made between the plaintiff and the defendant, the defendant assigned to the plaintiff all the interest, benefit, and profit to be henceforth made from the profession or practice of a surgeon and apothecary as theretofore carried on by the defendant at, or from any of the patients belonging thereto, and by the said deed the defendant covenanted with the plaintiff that the defendant would not at any time afterwards, directly or indirectly, by himself or in copartnership with any other person or persons, carry on or exercise the practice or profession of a surgeon and apothecary, or either of them, either by residing or by visiting any patient within the distance of three miles from the then place of business of the defendant at aforesaid, and that in case of any breach of the last-mentioned covenant, the defendant would pay to the plaintiff the sum of $—————, to be recovered against him as and for liquidated damages, and not as a penalty; and the defendant afterwards carried on and exercised the practice or profession of a surgeon and apothecary, within three miles of aforesaid, by visiting, within the said distance from that place, G. H., a patient of the defendant, in his character, practice, and profession of a surgeon and apothecary; yet the defendant has not paid to the plaintiff the said sum of

Like counts. Rawlinson v. Clarke, 14 M. & W. 187; Green v. Price, 13 M. & W. 695; Mallan v. May, 11 M. & W. 653; Hitchcock v. Croker, 6 Ad. & E. 438; Reynolds v. Bridge, 6 El. & Bl. 528.

Count on a contract for the services of the defendant as a commercial trav eller, stipulating that if he travelled over the same ground for any other person he should pay the plaintiff a stated sum. Mumford v. Gething, 7 C. B. N. S. 305. See Galsworthy v. Strutt, 1 Ex. 659; Leighton v. Wales, 3 M. & W.

545.

Count on a covenant in a lease not to top trees under a penalty for each tree so topped. Hurst v. Hurst, 4 Ex. 571; Farrant v. Olmires, 3 B. & Ald. 692; Aldridge v. Howard, 4 M. & G. 921; Leigh v. Lillie, 6 H. & N. 165; Sparrow v. Paris, 7 H. & N. 594.]

MANDAMUS.

See Com. L. P. Act. 1854, s. 68 et seq., and post, Tort, "Mandamus."