Phillips v. Longstreth
Supreme Court of Alabama
Error to the County Court of Mobile. The facts appear sufficiently in the opinion of the court. The demurrer to the first and second counts in the plaintiff’s declaration should have been overruled. If a covenant is secured by a penalty or forfeiture, the party may either bring an action of debt for the penalty, and recover the penalty, or he may proceed upon the covenant and recover more or less than the penalty. Per Ld.
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Error to the County Court of Mobile. The facts appear sufficiently in the opinion of the court. The demurrer to the first and second counts in the plaintiff’s declaration should have been overruled. If a covenant is secured by a penalty or forfeiture, the party may either bring an action of debt for the penalty, and recover the penalty, or he may proceed upon the covenant and recover more or less than the penalty. Per Ld. Mansfield, 4 Burroughs’s Rep. 2225. If this is a penalty, and not liquidated damages, the action is proper, and we could recover such damages as we proved. Meakings et al.…
1Opinion of the CourtChilton, J.
This was an action of debt by the plaintiff in error, upon an instrument of which the following is a copy: “ Having this day sold Elam Phillips a lot on Government street for $600, and not being able at present to procure a release of dower fromC. B. Stephens’s wife, or my own, I do hereby agree to procure their release within nine months, or forfeit the amount of his note, which will be due in five years from 17th April last.” . Signed by defendant. The declaration contains two special counts upon this agreement, to each of which a demurrer was sustained. The first count, after stating the…
2Cited by3 opinions
- Hussey v. RoquemoreSupreme Court of Alabama · 1855
- Nesbitt v. WareSupreme Court of Alabama · 1857
- Porter v. Sims Co.Supreme Court of Florida · 1908