TURKEY (continued.) treaty of peace, Dardanelles, 1809.-(continued.) settlement of grievances, 303. English trading to Aleppo shall pay same duties as French, 303. death of interpreter; disposal of his effects, 304. money wrongfully taken as duty on silk to be refunded, 305. ships shall not be molested at sea, 308. none but debtor or surety answerable for debt, 308. interpreters free from contributions, 308. ten servants, free from contribution, allowed ambassador, 309. English turning Turk, having goods of another person in his possession, 309. duties on certain articles of importation, 309. determination of law suits, and adjustment of grievances, 310. anchorage duties, 310. English turning Turk, having in his possession goods of another, 310. being entitled to certain purchase on his own account, 311. treaty, Dardanelles, 1809, 312. peace, and exchange of prisoners, 312. restoration of property and possessions, &c. 312. renewal of former treaties, 312. respect paid to ambassadors, 312. consuls appointed at Malta, 312. UNITED STATES.-(See "America.") VICE-CONSUL.-(See " Consul.") VICTUALLING BILL. form of, for ship, 360. WAR. letters of reprizal enrolled in chancery, 332. proclamation of revoking letters of marque and reprizal, 334. WAREHOUSE-KEEPER.-(See "Certificate," notice to, of intention to export goods, 355. book of, 361. "Customs," "Exportation.") certificate of London, one of over-entry at West India docks, 371. WARRANT. (See "Exportation," Customs.") exportation warrants, 356, 357. to land waiter, for his examining and delivering goods, 368. WHARFS.-(See "Sufferance," "Customs.") list of public ones for shipping and landing goods, 365. WINE. debenture on, 35. debenture on for officers of army and navy in actual service, 354. certificate of over-entry of, on arrival of ship from Jamaica, 373. petition for delivery of seized, for not having been duly reported by captain on arrival from foreign parts, 389. petition for the removal of from party's house in town to his house in country 396. END OF THE SECOND VOLUME. Printed by A. Strahan, Law Printer to His Majesty, Α Treatise ON COMMERCIAL LAW. VOL. IV. PRECEDENTS APPLICABLE TO THE THIRD VOLUME. CHAP. I. Agreements, Deeds, and Records in general. Memorandum of an Agreement made this 1st day of January in the Precedents WH (1) The particular character, if any, under which the parties entered into the agreement should be stated, as whether they contract as partner, agent, trustee, &c. See next precedents. Recitals are, however, frequently useful in composition, either to state or explain the motives of the parties in entering into the contract, or to avoid in the description of the consideration, or of the contract, a variety of facts, the statement of which in one continued sentence of length might be scarcely intelligible. See See an instance where a long sentence created ambiguity, 2 Bos. & Pul. 27.; but when the mere statement of the agreement will be sufficiently intelligible without any preamble, the agreement may commence, by stating the consideration and the stipulations, without any recital. (2) The date is not material, and it may be shewn, without prejudice to the agreement, that it was executed at a different time. 4 East, 477. (3) We have before seen that no precise form or set of words is necessary to constitute a simple contract, and it will be sufficient if the recital, or the facts contained in it, be set forth in any part of the agreement. (See ante 3d vol. 3.) As to the various forms of contracts not under seal in particular cases and for particular purposes, see throughout this volume. (4) Or if there be reciprocal stipulations, the statement of the mutual agreement will suffice, without otherwise adverting to the con. sideration. Common Form of an Agreement in Writing not under Seal, between Two Persons in their own Right. (1) Vol. III. Ch. I. tors, administrators, and assigns (1), [or if the promise is joint and made by two or more persons, say, "and first the said A. B. and C.D. do hereby for themselves, their executors, administrators, and assigns," or if joint and several, say, "and first the said A. B. and C. D., for themselves, their respective executors, administrators, and assigns, do hereby jointly and severally (2)," or if each one engage separately only, see the form, post 6, and 7 T.R. 352.; or if made by an agent, say, "and first the said A. B., as agent for I. K. (3), doth hereby," or if made by a partner, say," and first the said A. B. doth hereby, for and on the behalf of himself and L. M. his partner in this behalf (4)," or if made by and in the character of an executor, administrator, or trustee, say "and first the said A. B. as executor, [or administrator, or trustee of (5), &c. (as the case may be)] doth hereby promise and agree to and with the said C. D., his executors, administrators, and assigns," [or if the promise is made to two or more parties, or to an agent, partner, executor, administrator, or trustee, describe the promise accordingly as directed where the promise is made by such parties,] that, &c. [here state the particular contracts of the first contracting party, and upon every fresh and distinct contract say, " and the said A. B. [or C. D., &c.] doth hereby further promise and agree that, &c." or if any proviso or condition in the contract, say, " provided always, that if, &c."] The like with Penalty And the said C. D. doth hereby, in consideration of the premises, for himself, his executors, administrators, and assigns, [or if the promise is made by more than one party, or in any particular character, here state it as above directed between the brackets, containing stipulations relative to the first contracting party], promise and agree, &c. [here state agreement, &c. in the same way as above directed with respect to the first contracting party; and if there are more contracting parties than two, pursue the same directions throughout; and if there is any general understanding to be declared between the parties, providing for any future event or other contingency, say,] and it is hereby declared and agreed by and between the said parties to this agreement, that in case, &c. [here state such general understanding and agreement, and conclude as follows:] In witness whereof, the said parties have hereunto subscribed their hands the day and year first above written. Witness E. F. (7) (or if the signature of each "Witness to the signature of A. B., E. F. A. B. (6) C. D. &c. And lastly, it is hereby agreed by and between the said parties hereto, that either of them neglecting to perform the agreement on his part, according to (1) As heirs can only be bound by contract under seal, the word "heirs," is of no avail in a simple contract; and as executors and admini. strators are generally responsible in that cha racter to pay damages, though not expressly named, and as assigns are not bound by a personal contract, the words "executors, administrators, and assigns,” though usually introduced, are not in general of any avail. (2) The use of a joint and several stipula tion is, that the party in whose favour the contract is made may sue each separately, and in case of death of one, may sue his executors at law, which he could not otherwise do. 7 T. R. 352. 2 Burr. 1196. (3) See post, as to instruments by agents. It may be better to describe the principal as agreeing. (4) See post, as to instruments by partners. (5) But this makes him in general personally liable. 5 East. 148. 3 Bar. & Ald. 47. ante, 3 vol. 216, 7. (6) Here describe the character, if any, under which the party enters into the agree ment. (7) If the hand-writing of the contracting parties can be readily proved, it may be advisable to avoid having any subscribing witness; for if there be one, he must in general be called as a witness, and sometimes his attendance cannot be obtained at all, or without considerable expence. (8) See 2 Bos. & Pul. 346. in which it was held, that this clause in the concluding part of an agreement is to be construed as a penalty, and not as stipulated damages, and Heath, J. said, the tenor and effect and the true intent and meaning thereof, shall pay to Vol. III. Ch. I. the other of them the full sum of £ — of lawful money of Great Britain, to be recovered in any of his majesty's courts of record at Westminster. In witness, &c. And lastly, it is hereby agreed by and between the parties aforesaid, that in case either of them, (or in case the said C. D.) shall be guilty of or suffer any breach or breaches of any stipulation or agreement herein contained on his part or behalf to be performed or observed, he shall and will pay or allow, at the option of the other party, the sum of £--, not as a penalty, but as the fixed, stipulated, and measured damages and compensation agreed by him to be paid as a debt, and to be recoverable or allowed as such without any relief at law or in equity against such payment; but the other party shall nevertheless be at liberty to proceed for such further or other damages as he may have actually sustained, whether or not they may exceed the amount of the said sum of £—— so agreed to be paid as aforesaid. In witness, &c. The like with a Clause as to sti pulated Da mages. (1) And for the due and punctual performance of this agreement, each of the The like in said parties to these presents does hereby agree to bind himself to the other another of them in the sum of £500, to be considered and taken as liquidated Form. (2) damages, or sum of money forfeited or due from the one party to the other, who shall neglect or refuse to perform his part of the agreement. A. B. C. D. Memorandum of an Agreement made this 1st day of January in Whereas, &c. (see the directions as to the recitals, stipulations, &c. ante 1.) Memorandum of an Agreement made this 1st day of January in the year of our Lord 1823, between A. B. of London, merchant, of the 1st part; C. D. of Liverpool, merchant, of the 2d part; and E. F. of Manchester, manufacturer, of the 3d part. Whereas, &c. (see the directions as to the recitals, stipulations, &c. ante 1.) The statute of frauds, 29th Car. 2. chap. 3. sect. 4., enacts, "that no action shall be brought whereby to charge the defendant upon any agree ment that is not to be performed within the space of one year from the "Where articles contain stipulations for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty; but where it is agreed, that if a party do such a particular thing, such a sum shall be paid by him, there the sum stated may be treated as liquidated damages." So, if a party agrees not to do some specified act, under a 'penalty' of £100, such sum cannot be considered in the nature of liquidated damages. See 3 Bos. & Pul. 630. 13 East, 345. 1 Hen. Bla. 227. The penalty is auxiliary to the enforcing performance of the contract, and the party grieved may either take the penalty as his debt at law, and assign his breach under the statute 8 & 9 W. 3. c. 11. s. 8., or he may bring his action for damages upon the breach of (1) See Holt Rep. 46. and the last note. |