1801. ASTLEY v. WELDON, to find damages to the amount of the whole sum so agreed for; and the effect of the case must have been the same as if the Plaintiff had declared in debt for a penal sum. The jurisdiction of Courts of Equity in relieving on penalties is of very. high antiquity. The Legislature has now adopted this practice, and affords the same benefit to Defendants in actions at law and it has lately been settled that it is not matter of election in the Plaintiff to proceed under the statute, but that the directions are compulsory, and must be pursued (a). The question is then, what is the fair presumable intention of the parties? I do not quarrel with any of the cases which have been cited. A man in possession of his own estate may set his own value upon the view, the timber, or other ornaments and conveniences of the estate, and if he part with the possession, he may part with it on the terms that the tenant shall cultivate it in such a particular way, but if he vary from that mode of cultivation then so much additional rent shall be paid. I remember that the case of Rolfe v. Peterson was not thought altogether satisfactory at the time when it was decided: though I do not feel any objection to the determination. The case of Lowe v. Peers could not be considered as any thing but a case of stipulated damages. There is one case in which the sum agreed for must always be considered as a penalty; and that is, where the payment of a smaller sum is secured by a larger. In this case it is impossible to garble the covenants, and to hold that in one case the Plaintiff shall recover only for the damages sustained, and in another that he shall recover the penalty: the concluding clause applies equally to all the covenants. If any thing is to be collected from the form of this declaration, it should seem that the Plaintiff meant to sue only for the damages actually sustained. If he had declared in debt and assigned breaches he would have been considered as having made his election to proceed under the statute, and by varying the form of the action he shall not elude the statute. I rely on the form of the instrument and on the statute of William. With respect to the case of Hardy v. Martin, in which I was concerned, Lord Mansfield upon the trial at law inclined to think it a case of stipulated damages: though I see by the printed Report that it was considered otherwise in the Court of Equity. Rule discharged. (a) See Roles v. Rosewell, 5 Term Rep. 538. and Hardy v. Bern, 5 Term Rep. 636. WHITBURN WHITBURN v. STAINES. 1801. Jan. 27th. ASSUMPSIT. The first count of the declaration was upon It seems the an award; which was followed by the common counts. Bayley, Serjt., applied for a rule nisi to change the venue from Middlesex to Sussex: and observed, that although in actions on some instruments the Courts had refused to change the venue, yet that in the case of Pinkney v. Collins, 1 Term Rep. 571. where the Court refused to change the venue in an action on a bill of exchange, the reason given was, that such instruments were bona notabilia in any county, which does not apply to an award. Court will not change the venue in an action on though the declaration contain the an award, even the common counts (a). Nor will they oblige the Plaintiff to undertake to give evidence on the count upon Upon this Chambre, J., read a manuscript note of a case of the award. Orme v. Almay, B. R. M. 26 Geo. 3. where the Court refused to change the venue, the action being on a note to pay 157. if the Defendant did not complete his contract for an inn purchased at an auction, which was not a negotiable note. Bayley then urged that the Plaintiff ought to be bound to confine his evidence to the count on the award, as in Maugir v. Hinds, Barnes, 487. ed. 3.; or at least should undertake to give evidence on that count at the peril of a nonsuit, as in The Duke of Bedford v. Bray, Barnes, 491. ed. 3.; for unless the Court should put Plaintiffs under these terms, they would always be at liberty to lay the venue where they pleased, by introducing a count upon an instrument which never existed. The Court intimated an opinion that the application could not succeed, but offered to grant a rule nisi. Whereupon Bayley desired to take nothing by his motion. (a) And see Morrice v. Hurry, 7 Taunt. 306. Greenway v. Carrington, 7 Price, 564. Stanway v. Heslop, 3 B. and C. 9. MANN V. SHERIFF. Jan. 28th. THE Defendant in this case was held to bail upon an affidavit In an affidavit to made by the Plaintiff and one Robert Geddes. In that affi- hold to bail the Plaintiff deposed davit the Plaintiff deposed" that at the time of making the that at the time of the assign ment thereinafter mentioned, the Defendant was indebted to him on a bill of exchange, and that he afterwards assigned the debt by indenture to A. B. C. and D. in trust. A. then deposed that at the time of the affidavit being made the Defendant was indebted to them A. B. C. and D. as such trustees and assignees as aforesaid. Held, that the affidavit was insufficient, because it did not deny that the debt had been satisfied to the Plaintiff between the assignment and the time of the affidavit being made. But a supplemental affidavit was allowed. 1801. MANN บ. SHERIFF. assignment hereinafter mentioned the Defendant was justly indebted to him the Plaintiff in the sum of 371. as the acceptor of a bill of exchange payable to the order of Thomas Watson and duly indorsed to the Plaintiff, and that the Plaintiff by a certain indenture bearing date. &c. assigned the said debt among divers other debts and effects to the other deponent Robert Geddes together with J. L., J. C., W. M., and J. H., in trust for the benefit of the creditors of the said Plaintiff." Robert Geddes then deposed "that the Defendant is justly and truly indebted to him and the said J. L., J. C., W. M., and J. H., as such assignees and trustees as aforesaid in the said sum of 377. upon and by virtue of the said bill of exchange and the said assignment." Lastly, the Plaintiff and Geddes deposed" for themselves and each of them that no tender of the said sum of money or any part thereof hath been made in any note or notes of the Governor and Company of the Bank of England expressed to be payable on demand." A rule nisi having been obtained for discharging the Defendant upon a common appearance; Vaughan, Serjt., in support of the rule contended, that it ought to appear by the affidavit that the Defendant was indebted to the Plaintiff on record at the time of the affidavit made; whereas in this case it only appeared that the Defendant was indebted to him at the time of the assignment. Bayley, Serjt., contrà, insisted that in cases like the present, it was quite sufficient if the assignees who have the equitable interest swear that the Defendant is indebted to them as such assignees at the time of the affidavit made: he cited Creswell v. Lovell, 8 Term Rep. 418. Lord ELDON, Ch. J., said, The case of Creswell v. Lovell, as far as it affects that now before the Court, seems to have been founded upon the authority of some cases of legal assignees; which cases do not appear to me to bear any analogy to it; for neither in Creswell v. Lovell, nor in this case, could the action be brought in the name of the assignees. Though the Plaintiff in the present instance swears that the Defendant was indebted to him at the time of the assignment, yet subsequent to that time the Plaintiff may have received the money and given a discharge; and consequently, it is possible consistently with the Plaintiff's affidavit that nothing may have been due at the time of the affidavit made. If however the Plaintiff had added that subsequent to to the assignment nothing had been paid to him, the affidavit Bayley then applied for leave to file a supplemental affidavit (a) Vide Garnham v. Hammond, ante, 298. 1801. MANN v. SHERIFF. A TIPPING V. JOHNSON. RULE having been obtained by Bayley, Serjt., calling on the Plaintiff to shew cause why the execution sued out in this case should not be set aside for irregularity, 1st, Because it had been sued out after service of the allowance of a writ of error; 2dly, Because it was sued out by an attorney different from the one who had been attorney in the cause, and no order for changing the attorney had been obtained (a); Shepherd, Serjt., as to the first point produced an affidavit stating a declaration of the Defendant, that the writ of error was sued out for delay; and was proceeding to argue on the second point, When HEATH, J., said, that it appeared by several cases collected in Rol. Abr. (b) that the authority of an attorney determines with the judgment, and therefore no order to change the attorney was necessary. Per Curiam, (a) See Reg. Gen. A. D. 1654. B. R. s. 10. C. B. s. 13. Kaye v. De Mattos, 2 Bl. 1323. and Macpherson v. Rorison, Doug. 217. (b) Vol. I. fol. 291. M. But the attorney in the suit may sue out execution within a year after the judgment without a new warrant, 2 Inst. 378.; or sue out a scire facias against bail, and pray an alias, Burr v. Atwood, 1 Salk. 89.; though when the scire facias is returned there must be a new warrant, ibid. Indeed the reason given by Holt, Ch. J, why he may sue out the scire facias is, that any Rule discharged with Costs. one might sue out or pray the scire facias, Jan. 28th. Plaintiff may sue out execution by ney from the attorney in the a different attor cause, without obtaining an order of Court for changing the attorney. KERR 1801. Feb. 4th. If the writ be that the Defend ant answer "in a certain plea of trespass on the case on promises," and the declaration be in debt "for goods sold and delivered and money borrowed" the Court will dis charge the De fendant on entering a common appearance (4). KERR v. SHERIFF. RULE nisi was obtained in this case for entering a common appearance and having the bail-bond delivered up to be cancelled, on the ground of a variance between the writ and the declaration; the ac etiam clause of the capias being, that the Defendant should answer "in a certain plea of trespass on the case on promises to the damage of the Plaintiff, &c." and the declaration being debt for goods sold and delivered and money borrowed. Shepherd, Serjt., now shewed cause, and contended that the Court would look to the affidavit to hold to bail, to see whether the same cause of action had been pursued in the declaration as that for which the Defendant had been arrested, and that the affidavit in this case being "for money lent and advanced" the same cause of action had been pursued; he admitted that if the affidavit be for trover and the declaration on promises the Court will discharge the Defendant on common bail, under 13 Car. 2. st. 2. c. 2., as was done in Tetherington v. Golding, 7 Term Rep. 80.; and that on the same ground proceeded the cases of De la Cour v. Read, 2 H. Bl. 278. and Spalding v. Mure, 6 Term Rep. 363.; whereas the only question in this case was, whether the Court would discharge the Defendant because the declaration was debt on promises instead of case on promises. Vaughan, Serjt., contrà, observed, that the case depended on the statute of Car. 2., and that in Lockwood v. Hill, 1 H. Bl. 310. where the ac etiam was case on promises, and the declaration was in debt, an application to discharge the Defendant was only refused because the sum sworn to was under 407.; in which case the ac etiam not being necessary, the variance was immaterial. He cited a case of Barnes v. Trompowsky, K. B., where the ac etiam being in covenant, and the affidavit to hold to bail on a foreign charter-party, the Plaintiff having declared in debt on the charter-party, the Defendant was discharged on common bail; and also urged that if in these cases the Court did not interfere, bail would be made liable for causes of action for which they did not mean to bind themselves. The Court observed, that the condition of the bail-bond expressed the cause of action, and in so doing followed the words of the ac etiam clause literally, and that therefore if the Plaintiff's (a) And see Christie v. Walker, 1 Bing, 68. declaration |