the latter part of the section appears to contemplate a mode by which the Defendant may reduce his costs below 10%., but not any increase of them on behalf of the Plaintiff. I think, therefore, that the ordinary termination of judgment was not to be looked for in this cause, and that the cause was at an end when the Plaintiff took the money out of court. BOSANQUET J. I am of the same opinion. The rule for delivering up the bill on payment of costs, meant the costs of that rule, not the costs of antecedent proceedings. That could not have been the meaning of the Defendant, nor is it the legal result of the terms employed. The costs on the other rules would have been costs in the cause had the cause been subsistíng: but when the Defendant was desirous of going on, and the Plaintiff refused, he cannot be allowed to treat it as still continuing. COLTMAN J. I think the Plaintiff is entitled only to the costs of the rule for delivering up the bill, as upon an interlocutory order, and not to costs as upon final judgment. ERSKINE J. I am of the same opinion. The effect of the rule which was drawn up on payment of costs, Was the payment of the costs of that rule. The Plaintiff says he is entitled to the costs of the other two rules, because nothing having been said about costs in those rules, the costs of them are costs in the cause. But the true construction of the statute 43 G. 3. c. 46. s. 2. is, that the Plaintiff is limited to the 10%. unless he elects to take steps for proceeding in the action: he has omitted to do so here, and therefore I think he is en 1839. HANNAH v. WILLIS. 1839. HANNAH V. WILLIS. titled only to the costs of the last rule, which was expressly granted on payment of costs. Rule discharged as to the costs of the two first rules, and absolute as to the costs of the third. April 22. BOYS v. ANCELL. 1. Defendant COVENANT. The declaration stated that, on the agreed to grant a lease usual cove- 16th of December 1837, by an agreement then made by and between the Defendant of the one part, and the Plaintiff of the other part, the Defendant, for the considerations therein mentioned, covenanted that he would, within the space of one month then next ensuing, well and effectually by indenture, demise to the Plaintiff, his executors, administrators, and assigns, two messuages, &c. in Rochester, to hold from the 25th of December then next for the term of ten years, at the yearly rent of 100l., payable quarterly; and it was agreed that, in the said indenture of lease, there should be contained covenants on the part of the Plaintiff to pay the yearly rent, and also to repair the said messuages, &c.; that the Plaintiff should take the fixtures belonging to the premises at a valuation; that he should abstain from carrying on certain trades in them; and liquidated damages: Held, also that he should insure them during the continuance that the 500% of the term. There was to be a proviso for re-entry for non-payment of the rent, and all other usual and reasonable covenants, including a covenant on the part of the parties bound must be con sidered as a dated damages. 2. The agreement being between Defendant and two others of the one part, and Plaintiff of the other, and executed only by Plaintiff and Defendant, the declaration described it as an agreement between Plaintiff and Defendant: Held, that this was a variance which a Judge or the Court had power to amend under 3 & 4 W. 4. c. 42. s. 23. 1. Cucch. 660. 21. Ch. S. 244 3. L. W. C. Fleas, 163 Defendant for quiet enjoyment of the premises by the Plaintiff during the said term, upon payment of the yearly rent and performance of the covenants. And the Plaintiff, for himself did, by the said agreement, covenant with the Defendant to accept such lease upon the terms and conditions in the agreement above specified, and execute a counterpart thereof, and bear and pay the expenses of making the said lease and counterpart, and of the said agreement and a counterpart thereof, the lease and counterpart to be prepared by the solicitor of the Defendant. And for the true performance of the agreement, each of the parties bound himself unto the other in the penalty of 500l., to be recovered against the defaulter as liquidated damages. Averment, that the Plaintiff was always ready and willing to accept such lease as aforesaid upon the terms and conditions above specified, and to execute a counterpart thereof, and to bear and pay the expences of making the lease and counterpart, and of the agreement and a counterpart thereof; of all which premises the Defendant had notice; but that the Defendant did not, although often requested so to do, within the space of one month after making the agreement, well or effectually, by indenture or otherwise, demise to the Plaintiff the said messuages, &c., but wholly neglected and refused so to do: by means of which premises, the Defendant became liable to pay to the Plaintiff the sum of 500l., after the ex⚫piration of one month from the time of making the said agreement, on request: and although the said period of one month from the time of the making of the said agreement had elapsed before the time of the commencement of this suit, yet the Defendant, although often requested so to do, had not, as yet, paid the said sum of 500l., or any part thereof to the Plaintiff. It appeared at the trial, that the agreement on which the Plaintiff had proceeded, was between the Defendant 1839. Boys V. ANCELL 1839. Boys v. ANCELL. G. Moody, and J. Morrish, devisees in trust under the will of G. Miller, of the one part, and the Plaintiff of the other part: in other respects, it coincided with the agreement set out in the declaration, and it was executed only by the Plaintiff and the Defendant. It was contended, that the description in the declaration was a fatal variance, which the judge had no power to amend under 3 & 4 W. 4. c. 42. s. 23, inasmuch as it manifestly appeared that the Defendant alone had no power to demise the premises in question. Vaughan J., who tried the cause, was of that opinion; but directed a verdict for 500l., with leave for the Defendant to move to enter a nonsuit instead. Talfourd Serjt., moved accordingly in Easter term, 1838, and also to arrest the judgment or reduce the damages to 1s., on the ground that the stipulation for the payment of 500l. was a penalty, and not an agreement for liquidated damages. A rule nisi having been granted, Bompas Serjt., Erle, and Dowling, now shewed cause. As the agreement was executed only by the Defendant and the Plaintiff, it was correctly described in the declaration as the agreement of the Defendant, without naming his co-trustees: at all events, as the Defendant could not have been misled, the judge at nisi prius, or the Court, might amend under 3 & 4 W. 4. c. 42. s. 23. Then, as to the reduction of damages: - The principle to be collected from the various cases, is, that where parties agree for liquidated damages, if the sum agreed on is to be paid on the failure to perform a single act, such sum may be exacted as liquidated damages, whether the parties, in other parts of the agreement, have used the word penalty or not; but where the sum agreed to be paid as liquidated damages is to be paid on the non-performance of several acts varying in their degrees of importance, such sum is to be es teemed in the nature of a penalty, subject to be reduced according to the nature of the act, even though the word penalty be not found in the agreement. Here, the agreement is in substance for the performance of a single specified act, the granting of a lease; for the payment of the expenses by the grantee, accompanies and is part of that act: the case therefore is not to be distinguished from Reilly v. Jones (a), where the defendant agreed to take an assignment of the plaintiff's house and premises, without requiring the lessor's title; that he would give 2300l. for it, and also the amount of the goods, fixtures, and effects, and take possession of the house on or before September 29th; the plaintiff agreed to give up possession of the premises, effects, and stock by that day, to assign licenses, to repair or allow for all damaged outside windows, and to clear rent, taxes, and outgoings, to the day of quitting possession; the expenses of the agreement were to be paid by the parties in equal moieties; and either party not fulfilling all and every part, was to pay the other 500l., thereby settled and fixed as liquidated damages; and it was held, that on breach of the agreement by omission to take an assignment, the defendant was liable to pay the whole 500l.; and that it was not a mere penalty to cover such damages as might be actually incurred. So in Crisdee v. Bolton (b) where, in an agreement for the sale of a public house, it was stipulated that the seller should not be concerned in carrying on the business of a publican within a mile from the house, aua he had sold, "under the penal sum of 500l., the same to be recovered as and for liquidated damages," it was held, that the whole sum was recoverable as liquidated damages. In Astley v. Weldon (c), Smith v. Dickenson (d), Davies v. Penton (e), Kemble v. Farren (g), and Horner v. 1839. Boys v. ANCELL |