last-mentioned promise and tundertaking, contrary to the said last-mentioned promise and undertaking *of the said C. D. to wit, at, &c. aforesaid.--[Other special counts should be added as particular circumstances may require; also add two counts for an estate bargained and sold, as ante, 37, omitting the statement of the release or other conveyance-a count for money paid—and the account stated.] ing VENDOR AGAINST PURCHASER. [* 173 ] agremeent First count, pro For that whereas the said A. B, before and at the time of the mak- 34. On a pubIc-house of the agreement and the promise and undertaking of the said C. D. hereinafter next mentioned, was lawfully possessed, that is to say, against the for the residue of a certain term of years, to expire on, &c. of a certain vendee (c). dwelling-house and premises, with the appurtenances, known by the for not pro "sign of the situate, &c. and the said A. B. was also then law- curing a brofully possessed of certain beer and other licences, and of certain ker to appraise the stock, &c. liquors, and also of certain household furniture, fixture, and other effects; then being on the said premises, to wit, at, &c, And thereupon heretofore, to wit, on, &c aforesaid, at,, &c. aforesaid, by a certain agreement then, and there made between the said A. B. of the one part, and the said C. D. of the other part, it was agreed by and between* the said A. B. and the said C. D.' that the said A. B. should, &c. Here copy the agreement verbatim to the following words:] But that if either of them should neglect or refuse to perform the said agreement on his part, the party so neglecting or refusing should pay to the other of them the sum of L., on demand, by the said agreement mutually agreed to be the damages, ascertained and fixed (d) on breach thereof, and to become a just debt, and recoverable in any of his Majesty's courts of law, as by the said agreement, reference being thereunto had, will fully appear. And, &c. [State mutual promises to perform the agreement ut ante, 115, and proceed *with the [⚫ 174] averment as follows (e):] And although the said A. B. was always from the time of the making of the said agreement, until and upon the said to wit, at, &c. aforesaid, ready and willing to assign and convey his said estate and interest in the said dwelling-house and premises, with the appurtenances, to the said €. D. and to assign and deliver to the said C. D. the said beer and other licences, and to mend and allow for all the damaged windows of the said messuage and premises, with the appurtenances, and to clear the said premises from all incumbrances of rent and taxes, and to sell and days of (c) As to declarations of this nature, see the observations, ante, 167, 8, and 169. note b, and Dougl. 620. 684. (d) These damages are liquidated, and not in the nature of a penalty. As to the distinction between a penalty and liquidated damages, see 2 B. and P. 346. and 3 B. and P. 632. (e) The averments of performance on the part of the plaintiff must always depend on each particular agreement; those in the precedent are such as most frequently occur in actions on publichouse agreements. VENDOR AGAINST PURCHASER. [175] deliver to the said C. D. the said household furniture, fixtures, liquors, and other effects, at a fair appraisement thereof, as aforesaid, and also to deliver possession, and complete and fulfil the said agreement upon the said day of, at the joint expense of himself and the said C. D. according to the effect and meaning of the said agreement in that behalf, and although the said A. B. afterwards, to wit, on, &c. aforesaid, appointed and procured one E. F. a broker, on his part, in order to make a fair appraisement and valuation of the said household furniture, fixtures, liquors, and effects, and the said E. F. was then and there ready to appraise and value the same accordingly; and although the said C. D. then and there had notice of the premises, and was requested by the said A. B, to appoint and procure some person as a broker on his part, to make such appraisement and valuation, and to perform the said agreement on his part, according to the effect and meaning thereof; yet the said A. B. in fact saith, that the said C, D. did not nor would, when he was so requested, as aforesaid, or at any other time, appoint or procure a broker on his part, to appraise and value the said household furniture, fixtures, liquors, and other effects, or any of them, according to the effect and meaning of the said agreement, *but hath hitherto wholly neglected and refused so to do, and by reason thereof, the said household furniture, fixtures, liquors, and other effects, still remain unvalued and unpaid for by the said C. D. to wit, at, &c. aforesaid, contrary to the said agreement and the said promise and undertaking of the said C. D. whereby the said C. D. hath become liable to pay the said A. B. the said sum of L.200, in the said agreement mentioned, when he the said C. D. should be Second count, thereunto afterwards requested. And whereas also, the said A. B. for preventing heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, was lawfully the plaintiff's broker from possessed of a certain other dwelling-house, with the appurtenances, valuing. situate, &c. for the residue of a certain term of years, to expire on, &c. in which said last-mentioned dwelling-house the business of a victualler had been and then was carried on by virtue of certain licences then also in the possession of the said A. B. and the said A. B. was also then and there possessed of certain other effects in the said dwelling-house, whereof the said C. D: then and there had notice. And the said A. B. being so possessed, thereupon heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration (f) that the said A. B. at the like special instance and request of the said C..D. and for the sum of L.- then and there paid to the said A. B. by way of earnest, and such further sum of money as the said last-mentioned effects should be valued at, upon a fair appraisement by a broker on each side, or their umpire, to be paid to the said A. B. as hereinafter mentioned, had agreed, &c. [State the substance of the agreement in () As to the necessity for the state- on each side, see 6 East. 568-9. ment of the whole of the consideration VENDOR AGAINST PURCHASER. the first count, with proper averments, and proceed as follows:]— And although the said A. B. afterwards, to wit, on, &c. aforesaid, 'at, &c. aforesaid, nominated and appointed one E. F. a broker, to value and appraise the said last-mentioned effects for and on behalf of the said A. B., and the said C. D., then and there had notice of the premises last aforesaid, and then and there nominated and appointed a certain other person, to wit, one G. H. using the trade of *a broker, [* 176] as such broker to appraise and value the same effects, for and on behalf of him the said C. D. and although the said E. F. and G. H. as such brokers as aforesaid, then and there began such valuation and appraisement, and the same would have been proceeded with and completed, if the said C. D. would have suffered and permitted the said G. H. to have proceeded therein; yet the said C. D. not regarding his said last-mentioned promise and undertaking, but contriving and intending to deceive and defraud the said A. B. in this behalf, did not nor would (although often requested so to do) suffer or permit the said G. H. to proceed in of go on with the valuation and appraisement of the 'said last-mentioned effects on his part, but afterwards and before the.completion thereof, to wit, on, &c. aforesaid, at, &c. aforesaid, wholly refused to suffer or permit him, so to do, and then and there countermanded and prevented the said G. H. from proceeding and going on with the said valuation and appraisement, and then and from thence hitherto hath neglected to nominate or appoint any other person to value or appraise the said last-mentioned effects for and on behalf of him the said C. D. and hath hindered and prevented the completion of such valuation and appraisement as last aforesaid, and the same effects still remain wholly unpaid for by him the said C. D. to wit, at, &c. aforesaid, contrary to the said last-mentioned promise and undertaking of the said C. D. to wit, at, &c. aforesaid.-[Add one count for a leasehold estate bargained and sold, ante, 37-Two counts for goods bargained and sold, ante, 52.-Money paid, and the account stated.] For that whereas the said C. D. heretofore, to wit, on, &c. at, &c. 35. Landlord was tenant to the said A. B. of a certain, farm, *lands and premises, against a tenwith the appartenances, situate, &c. and in. consideration thereof, he to year (g) on ant from year implied con tract to use the premises (g) When the plaintiff may declare for the breach of which the action is in a husbandas on a demise, see 13 East. 18. If the brought, one count should be on the like manner tenancy be under a lease, and the les express agreement, stating mutual pro- to the custom and according see executed the same, or a counter-mises and the breaches, according to of the country. part, (see 4 Esp. Rep. 42.) the remedy the terms of the agreement, see 2 Bla, Breaches is by covenant, or by action, on the case. H. 840. Case might also be supported over-cropping where waste has been committed, 2, when waste has been committed, 2 Bla. off manure, Bla. Rep. 1111. though the writ of waste Rep. 1111.-The law implies a contract &c. would not be sustainable, Co. Lit. 54. on the part of a tenant, that he will oc. b. n. 1. When there is an agreement cupy a farm, &c. in a tenant-like mannot under seal, containing a stipulation, ner, and assumpsit may be supported and carrying [177] AGAINST LANDLORD the said C. D. then and there undertook, &c. to manage, use, and cultivate the said farm, lands, and premises, with the appurtenances, during the said tenancy, in a good and husbandlike manner, and according to the custom of the country, where the said farm, lands, and premises were so situate, as aforesaid. And the said A. B. in fact saith, that the said C. D. was and continued tenant to the said A. B. of the said farm, lands and premises, with the appurtenances, for a long space of time, to wit, from the time of making his said promise and undertaking, until the day of, A. D. 1811, (or, "hitherto,") to wit, at, &c. aforesaid. Yet the said C. D. not regarding his said promise, &c. but contriving, and wrongfully and unjustly intending to injure the said A. B. in this behalf, did not nor would, during the continuance of the said tenancy as aforesaid, manage, use, or cultivate the said farm, lands, and premises, with the appurtenances, in a good and husbandlike manner, and according to the custom of the country where the said farm, lands, and premises were so situate as aforesaid, but on the contrary thereof, after the making of his said promise and undertaking, and during the continuance of the said tenancy, to wit, in the successive years of our Lord and wrongfully and in juriously overcropped *the said land, and cropped, planted, and sowed divers, to wit,acres of the said farm, lands, and premises, with divers, to wit, two successive crops of wheat, barley, peas, beans, tares, and oats, that is to say, acres, part thereof with wheat, acres, other part thereof with barley, acres, other part thereof with peas, acres, other part thereof with tares, and the residue thereof with oats, the same, according to the course of good husbandry, then and there being excessive and unreasonable crops for the said land, and contrary to the course of good husbandry, and the custont of the country where the said farm, lands, and premises were so situate as aforesaid, and contrary to the said promise and undertaking of the said C. D. to wit, at, &c. aforesaid, And the said A. B. in fact, further saith, that the said C. D. further disregarding his said promise and undertaking, and further contriving and intending to injure, the said A. B. in this behalf, after the making of his said promise and undertaking, and during the continuance of the said tenancy did not nor would spend, use, and employ on the said farm, lands, and premises, the hay, straw, soil, dung, compost, and manure, which grew, arose, [178] Second breach. for the breach of such implied contract, must be assumpsit, or case, 1 H. Blas 99. 1 T, R. 162. 5 T. R. 471. 1 Esp. Rep. 57. 6 East. 530; and in such case it may be advisable, in one count, to state the covenants in the lease, that such lease was determined, that the defendant had become tenant, and his assumpsit to perform the covenants, 1 Hen. Bla. 99. AGAINST and was made thereon, during the continuance of the said tenancy, as LANDLORD he the said C. D., according to the course of good husbandry, ought to have done, but on the contrary thereof, he the said C. D. during the continuance of the said tenancy, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of at, &c. aforesaid, took and carried away, off and from the said farm, lands, and premises, divers large quantities, to wit, two hundred cart-loads of hay, two hundred cart-loads of straw, two hundred cart-loads of soil, two hundred cart-loads of dung, two hundred cart-loads of compost, and two hundred cart loads of manure of great value, to wit, of the value of L.200, and which had arisen and been made on the said farm, lands, and pre mises, during the said tenancy, and Spent and consumed the same elsewhere than on the said farm, lands, and premises, or any part thereof, contrary to the course of good husbandry and the custom *of [179] the country where the said farm, lands, and premises were so situate as aforesaid; and also contrary to the said promise and undertaking of the said C. D. By means of which said several premises, the said farm, lands, and premises, with the appurtenances, became and were greatly impoverished, and rendered less productive than the same otherwise would have been, and greatly deteriorated in value, to wit, at, &c. aforesaid.- [It may, in some cases, be advisable to add a second count, similar to the first, leaving out what relates to the custom of the country, lands, &c.; and also to insert a count as in 4 East. 155. stating the promise as in the first count, and a general breach of good husbandry, without stating the particulars, see 3 T. R. 307.] [Same as the above precedent, to the †, and then proceed as follows: 36. Breach for ploughing up -on, &c. ploughed up and converted into tillage a certain piece or grass land, and parcel of land then in grass, called, &c. and parcel of the said farm cropping the and lands, and cropped and sowed the same without manuring or dresland without manuring the sing the same with sand and other manure, as he the said C. D. ought same. to have done, according to the course of good husbandry, and the custom of the country where the same farm, &c. were so situate as aforesaid; contrary to the course of good husbandry, and the custom of the country aforesaid, and to the said promise, &c. of the said C. D. to wit, at, &c. aforesaid. successive land. [Same as the above precedent, to the †.]-In the successive years of 37. For taking our Lord, 1802, 3, 4, wrongfully and injuriously cropped, planted, and crops without sowed a certain other pièce or parcel of land, called, &c. part and par- manuring the cel of the said farm and lands, with divers, to wit, four successive crops of corn, potatoes, and turnips, to wit, wheat, potatoes, turnips, and wheat; and also without manuring or dressing the said last-mentioned land with sand or manure, as according to the course of good husbandry, he the said C. D. ought to have done, contrary to the course, &c. and custom, &c. where the said farm, &c. were so situate as *aforesaid, and contrary to his said promise, &c. to wit, at, &c. aforesaid. [180] |