127 DECLARATIONS IN ASSUMPSIT. day of XXXI. For last-mentioned messuage, &c. on or before the not conveying. in the year aforesaid, on having a good and valid title made to him to the same messuage, &c. He the said C D, then and there, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, &c. that he the said CD, would procure an abstract of a good and valid title to the said last-mentioned messuage, &c. to be furnished to the said A B in due and convenient time for enabling him to get such title examined, and a proper conveyance of the same messuage, &c. prepared, and the said last-mentioned purchase completed on or before, &c. aforesaid. Yet the said CD not regarding, &c. did not, nor would, although, &c. procure an abstract of a good and valid title to the said last-mentioned messuage, &c. to be furnished, &c. (negativing the performance of the promise,) but therein wholly failed and made default, to wit, at, &c. aforesaid, and the said CD then and there wrongfully and injuriously neglected, and omitted to furnish any abstract of title to such messuage, &c. as last aforesaid, for a long and unreasonable time, and until an insufficient and inadequate time remained for the examination of such title, and for the preparation of a proper conveyance, and the completion of such purchase as last aforesaid, by the day appointed for that purpose as aforesaid, according to the said last-mentioned promise of the said C D in that behalf, and the said AB in fact, further saith that by means and in consequence of such neglect and omission as aforesaid, and by reason of E F, (without whose joining in the conveyance of the said last-mentioned messuage, &c. a good title thereto could not be made,) having since departed *this life, to wit, at, &c. aforesaid, the said A B hath been deprived of all benefit and advantage, which would have arisen to him from the completion of the said last-mentioned purchase, and hath ne cessarily been put to great expenses, amounting in the whole to a large sum of money, to wit, &c. in endeavouring to procure the said title, as last aforesaid, and hath lost, &c. [same damage as in last count. Add counts for money paid-had and received-account stated—and breach.] * 128 32. Against a publican on an agreement to assign his For that whereas the said CD, before and at the time of the making of the agreement and his promise and undertaking lease, and on his implied contract, that he had lawful title so to do. ་ hereinafter next mentioned, represented to the said A B, that he the said CD was lawfully possessed for the residue and remainder of a certain term of years then to come and unexpired therein, of a certain messuage or dwelling-house and premises, situate, &c. wherein he the said CD then exercised and carried on the business of a victualler, to wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. aforesaid, by a certain agreement then and there made, by and between the said CD and the said A B, it was agreed in manner and form following, (that is to say,) &c. [Here set out the agreement verbatim, and state mutual promises, ut ante, 76. and that defendant also undertook as follows:] and that he the said CD then and there had lawful right to sell and assign over the said lease of the said messuage or dwelling-house to the said A B, and that he would perform and fulfil the said agreement in all things therein contained on his part and behalf, to be perform ed and fulfilled. And although the said A B hath always, &c. [General performance by plaintiff.] Yet the said CD contriving, &c. did not perform or regard the said agreement, or his said promise and undertaking, but thereby craftily and subtly deceived the said A B in this, to wit, that he the said C D, at the time of making the said agreement, and his said promise and undertaking as aforesaid, had not lawful right to sell or assign over the lease of the said messuage or dwelling-house and premises to the said A B, whereby the said C D was hindered and prevented from selfing or assigning over the same, or performing the said agreement, on the part and behalf of him the said CD, and by means of the said several premises, he the said A B not only lost and was deprived of all the profits, benefits and advantages, which might and would otherwise have arisen and accrued to him from the performance of the said agreement, on the part and behalf of the said A B, but was forced and obliged to and did necessarily lay out and expend a large sum of money, to wit, the sum of →. of lawful, &c. in and about the appraisement and valuation of the said household furniture, and hath been and is by means of the premises, otherwise greatly injured and damnified, to wit, at, &c., aforesaid. XXXII. A gainst a pub cane 129 Vendor a gainst pur chaser. 33. On a public-house agreement against the vendee.(i) [As there are several precedents in print by a vendor against a vendee for not completing his purchase, it is unnecessary here to insert any: See a declaration by a vendor seised in fee against a purchaser at a public auction for non-payment of the purchase money, and the law relative to these declarations in 6 East, 555. 3 East, 410. 2 H. Bl. 123. and against a purchaser of an estate in fee by private agreement, 2 Wentw. 91. 1 H. Bl. 270. and against a purchaser of a chattel interest, Jones v. Barkley, Doug. 684. and Luxton v. Robinson, Doug. 620. From these it ap pears, that the plaintiff must shew that he had good title to convey. The following precedent is however given, as it often occurs in practice :] For that whereas the said A B, before and at the time of the making of the agreement and the promise and undertaking of the said CD, hereinafter next mentioned, was lawfully posFirst count, sessed, that is to say, for the residue of a certain term of for not procu ring a broker years, to expire on, &c. of a certain dwelling-house *and prethe stock, &c. mises, with the appurtenances, known by the sign of the to appraise * 130 situate, &c. and the said A B was also then lawfully possessed of certain beer and other licenses, and of certain liquors, and also of certain household furniture, fixtures 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 CD, that the said A B should, &c. [Here copy the agreements 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. on demand, by the said agreement mutually agreed to be the damages ascertained and fixed(k) on breach thereof, and to become a just debt, and recoverable in any of his ma (i) As to declarations of this nature, see the above observations, and Doug. 620. 684. As to liquidated damages, 2 B. & P. 346. 3 B. & P. 692. (k) 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. & P. 346. and 3 B. & P. 632. jesty's courts of law. As by the said agreement, reference (1) The averments of performance on the part of the plaintiff must always depend on each particular a greement; those in the precedent Vendor against pur chaser. * 131 Vendor a chaser. Second count, * 132 the said household furniture, fixtures, liquors and other effects, gainst pur still remain unvalued and unpaid for by the said CD, to wit, at, &c. aforesaid, contrary to the said agreement and the said promise and undertaking of the said CD, whereby the said CD hath become liable to pay the said A B the said sum of 2007. in the said agreement mentioned, when he the said CD for prevent- should be thereunto afterwards requested. And whereas ing plaintiff's broker from also, the said A B heretobre, to wit, on, &c. aforesaid, at, valuing. &c. aforesaid, was lawfully possessed of a certain other dwelling-house, with the appurtenances, 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 licenses 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 CD then and there had notice. And the sail A B being so possessed thereupon, heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration(m) that the said AB, at the like special instance and request of the said C D and for the sum of -. 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 he 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 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 CD then and there had notice of the premises last aforesaid, and then and there nominated and appointed a certain other person, to wits one G H, using the trade of a broker, as such broker to appraise and value the same effects, for and on behalf of him the said CD, and although the said E F and G H as such brokers as aforesaid, then and there began such valuation and ap (m) As to the necessity for the statement of the whole of the consi deration on each side, see 6 East, 568, 569. |