Transcription
COURT OF COMMON PLEAS, JAN. 28.
ASTLEY V. WELDEN.
It will be recollected that his cause was tried before Lord Eldon at the Sittings after last Trinity Term, and a verdict was then returned for the Plaintiff; left, however, to be finally regulated by the opinion of the Court, with regard to a point to be submitted to their consideration. The action was brought to recover the sum of 200l. being, as the Plaintiff alleged, the liquidated damages due on a covenant it was stipulated, as was contended on his behalf, that he should pay the Defendant, then a female performer at his Theatre, a certain weekly salary, and that the Defendant should act at that, and his several other Theatres, for this allowance during the term of three years. For the purpose of securing its exact fulfilment, it was agreed farther, that in case of non-performance, or neglect of the specific articles of the engagement, the Defendant should forfeit this sum of 200l. as a compensation for the damages which might be sustained in consequence of such neglect on the part of the Defendant. It was, however, urged that the damaged to be incurred, by particular instances of neglect, were particularly mentioned in the special regulations of the Theatre, and that this larger sum was to be viewed merely as a penalty, the damages on which were afterwards to be determined in the event of any dispute which might take place. The Jury, under his Lordship’s direction, found a verdict for 20l. being what they reckoned the amount of the real damage; and 200l. if it should be the opinion of the Court that this was actually the sum agreed on as liquidated damages in the covenant. This point was to have been argued last term, but was then delayed, as no counsel appeared on behalf of the Defendant, who had then left the country.
This day, however, the point was fully argued, and cases were cited and largely commented on by the counsel on both sides.
After the Court had given their opinion at great length, it was decided that the 200l. were only intended as a penalty, and by this decision the original verdict is confirmed.
