The Court did not decide whether the sum was to be considered as a penalty or as liquidated damages, but seemed to think that it was a penalty. They appeared to have some doubts with regard to their power, by the statute, 1785, c. 22, to assess damages in an *150action of covenant which is not brought to recover the forfeiture or penalty; but as the defendant had moved to be heard [ * 198 ] by the Court as *to the damages, they, with the assent of the plaintiff, assessed the same, and ordered the judgment to be entered for $ 100, and the interest thereof, from the service of the writ, saying that the defendants ought to satisfy the Court that the sum should be reduced, but they had given no evidence to that effect. (1) (a)
Parsons and T. Bigelow for the plaintiff. S. Dana for the defendants.Vide Perkins vs. Lyman, vol. xi. p. 76.
[There can be no doubt the sum was in this case fixed as a penalty merely 3 ana was not intended to be considered as liquidated damages.—Asley vs. Weldon, 2 B. & P. 346.—Smith vs. Dickinson, 3 B. & P. 630.—Davis vs. Penton, 6 B. & C. 216; 9 D. & R. 369.—Charrington vs. Laing, 3 M. & P. 587; 6 Bingh. 242.—Kemble vs. Farren, 6 Bingh. 141 ; 3 M. & P. 245.—Homer vs. Graves, 5 M. & P. 768; 7 Bingh. 735.—Ed.]