Liquiilaled Damages. — Chimney Sweepers. SIl 



not for the former, a% sii^cc Hie statute of 

 William, t!ie penalty is not considered 

 as a debt even at law, and execution 

 cannot be taken out for it, but tlie real 

 damage must be assessed by a jury. 

 Sept. 3, 1816. W. 



18 16.3 



really sustained, wliieli must, in that 

 case, be assessed by a jury under Stat. 8 

 and 9, William III, c. 11, s. 8: but, if 

 it be construed into a contract to pay 

 the 20,000/. as liquidated damages, on 

 breacii of the agrccment, then the Com- 

 pany would be entitled to re(;ovcr the 

 ■whole of tliat sum. Vide Lowe v. Peer. 

 4 Burr. 2229; — Ponsonby i;. Adams. 

 6 Br. Pari. Ca. 417;— Rolfe v. Peterson, 

 Ibid. 470; and Wildey v. Thointosi; 

 9 East. 409. 



The principle on which cases of 

 penalty arc distinguishable from those 

 where the breach of contract is se- 

 cured by stipulated damages is by no 

 means yet well defined; and Lord El- 

 don, in 2 Bos. and Pul. 350, states him- 

 self to be much embarrassed in ascer- 

 taining it. The case, however, of Ast- 

 ley V. WeldoH, ibid. 346, clearly esta- 

 blishes this point, that it does not de- 

 pend on the phraseology adopted in the 

 instrument, but on the intent of the 

 parties, as collected from tlie whole of 

 the contract taken together; and JMr- 

 Justice Heath, in giving his opinion in 

 that case, lays down this as a clear prin- 

 eiple to be adopted in the construction 

 «f such contracts; viz. " That where 

 articles contain covenants for the per- 

 formance of several things, and then 

 «ne large sum is stated at the end to be 

 paid upon breach of performance, lliat 

 inustLe considered as a penalty; but, 

 where it is agreed, that, if tlw party do 

 such a particular thing, such sum shall 

 be paid by him: tiicre the sum stated 

 may be treated as liquidated damages. 

 This appears to be a solid and reason- 

 able principle ; because, where tho 

 obliger binds iiimself to the performance 

 of several distinct acts, the breach of 

 these must necessarily vary in amount 

 of damages, according to circumstances. 

 In Welbeam v. Ashtoii, 1 Campb. 78, 

 Lord EUenboiongh held, tliat tlie jury 

 could not exceed the penalty in da- 

 mages; and, witliin it, could only give 

 the pkiiiitiff a compensation for the loss 

 he actually proved; but his lordship 

 seems to have overruled the first part of 

 tliat dictum in the latter case of Har- 

 rison ». Wrigiit, 13 East. 343 ; where it 

 was d<'terniined on argument that the 

 pluintilT may recover damages, on the 

 breach of contract, beyond the amount 

 ef the |ienalty. 



1 hope 1 have sufliciently explained 

 Uie dillerenee between a pcimlty and 

 liquidated damages; but, pcrha()s, it 

 may be as well to aild tliat, for the latter, 

 Uic (IcteuUaat may be holden to bail, bi\t 



To the Editor of the Monthly Magazine, 



SIR, 



THE writer of the letter on chimney- 

 sweeping, p. 8, of your last Maga- 

 zine, appears to be much mistaken re- 

 specting tiie S/icieti/ for iuperseding the 

 Necessiti/ of Climbing Soys, &c. Sec. 

 wiien he says (aliudiug to that society 

 evidently), "110 good of any kind was 

 cft'ccled." I am far from supposing that 

 all the good which was desired, or 

 which was at one time expected, has 

 been eflected by that society ; but tliat 

 some has been, is to me very clear. If 

 one of the machines for sweejiing chim- 

 neys, of which mention is made, has 

 been found sniFicient in .several thousancj 

 instances, has no good been effected? 

 If a chimney-sweeper, who used to ad- 

 vertize small boys for narrow Hues, has 

 altered his bill — narrow tines swept by a 

 machine (or words to that efl'ect), is it 

 not probable that some good has been 

 effected? If fires in chimneys have been 

 extinguished by the machine, instead of 

 helpless infants being sent up to extin- 

 guish them, has no good been effected? 

 The practice of sending up children to 

 extinguish fires in chimneys, oiiglit, iu 

 my oi)inion, to be made felony ; and, if 

 death ensues, it ought to be considered 

 as murder. 



That the Scotch method of cleansing 

 chimneys is a very good one, appears 

 e\idciit; but, the inconvenience of get- 

 ting to the upper part of the chimney 

 being in some cases, in London, very 

 great, surely machines which are work- 

 ed from below must be considered as 

 very useful. 



The late meeting at the JXIansion- 

 bou:;e has revived the subject of mecha- 

 nical chimney-sweeping, and there can 

 be little doubt but great benefit will foW 

 low from if. A somewhat similar meet- 

 ing (of course less numerous) bus since 

 taken place at Walthamstow, whicii was 

 very respectably attended ; and, as was 

 desirable, niistiess(;s of families, as well 

 as mastor.s, attended. Several childreu 

 were also present. 



The beneficial coiwequences of this 

 meeting are to mo very apparent, there 

 appearing to be an evident desire to 

 aboli.sh entirely the practice of employ- 

 ing childreu to sw«m'p chiouicys us licre- 

 D c 2 tolisrc. 



