Brown v. Hoy

16 N.J.L. 157

• Court: Supreme Court of New Jersey
• Decided: September 15, 1837
• Status: Published

Opinion

By the Court.

The affidavit is clearly insufficient. It states that two thousand dollars is the penalty fixed in the covenant for a non-performance of it, but it does not state that any breach has been'committed. Besides every penalty, is not in the nature of liquidated damages; on the contrary, a penalty is usually in covenants, only to cover such damages as the party may be entitled to. The affidavit ought therefore not only to have shewn that there had been a breach of the covenant, but that the party had stimulated to pay a particular mm in satisfaction. But it is not stated, what the agreement was, nor in what respect, if any, it was broken. The writ too, is neither in debt, nor in covenant, but partly in both: it is “ to render to the plaintiff, two thousand dollars, which to him the defendant owes upon covenant.” It gives to the defendant no style of action to which he may appear and put in bail.

Let the writ bo quashed.

Cited in Cheddick’s Ex’r v. Marsh, 1 Zab. 466.