Page:The English Reports v1 1900.pdf/1067

for them; and therefore praying, that upon payment by the respondents to the appellant of £273 3s. 9d. as the nett rent due from the respondents under the lease, from the 5th of April 1766, after deducting £26 16s. 3d. for land tax, which they had paid; as also upon payment by the respondents of the costs and expences the appellant had been put to, for or by reason of the commencing and prosecuting any suit or action at law against the respondents, to compel the payment of the said rent, together with a reasonable satisfaction for any damage the respondents should appear to have done or committed to or upon the said farm, or premises thereunto belonging, without the consent of the appellant, which the respondents (if any) were ready and willing to pay the appellant might be restrained by injunction from taking out execution upon the said judgments, and that the award made by the said Henry Partridge and Charles Turner, might be duly observed and performed by all parties; and that the appellant and respondents might, in pursuance and performance thereof, execute releases to each other of all matters in difference between them, up to the time of making the said award; and for general relief.

To this bill the appellant put in his answer, and thereby denied his having given any licence or consent for the ploughing up the said ten acres, or that he had any notice before the month of April 1766, that the same had been ploughed; and he set forth the submission and award, from whence it was evident, that the arbitration related only to the special matters mentioned therein, and did not extend to the breaches of covenant, for which the appellant's action was brought.

The respondents replied to the answer, and issue being joined thereon, several witnesses were examined; and it was proved, on the part of the appellant, that the farm was greatly injured by [441] the mismanagement of the respondents, and was of less value to he let at the end of the year 1766, than when the respondents took the same; and that since the respondents had ploughed up the said ten acres, they had never clayed or manured the same, nor had given the same one single fallow: but the respondents did not prove any licence or consent from the appellant, or his steward, for ploughing up the said ten acres, or that the appellant had any notice thereof before the time of making the award, or before the 5th of April 1766, or that the respondents had performed the award on their parts; which matters the respondonts had alledged in their bill, as the ground of the relief they prayed.

On the 20th of November 1769, the cause was heard before the Lord Chancellor Camden, when his Lordship was pleased to declare, that the plaintiffs were entitled to be relieved against the verdicts obtained by the defendant, upon making him a just and adequate satisfaction for the damages he had sustained, by breach of all or any of the covenants, for which he had recovered damages by the said verdicts: and therefore it was ordered, that the parties should proceed to a trial at law, at the next summer assizes to be holden for the county of Norfolk, upon the following issue, quantum damnificatus; in which action the plaintiffs were to admit the several covenants to have been broken, in such manner as the same were averred to have been broken by the declaration in the said action and it was further ordered, that the damages that should be found by the jury upon each of the said covenants should be separately indorsed on the postea, and that the defendant should be plaintiff at law, and the plaintiffs be defendants at law, who were forthwith to name an attorney, accept a declaration, and appear and plead to issue and his Lordship reserved the consideration of costs, and all further directions until after such trial; and any of the parties were to be at liberty to apply to the court, as there should be occasion.

The defendant being dissatisfied with this decree, appealed from it; and on his behalf it was argued (A. Wedderburn, J. Madocks, J. Hett), that the question made by him arose upon the declaration in the decree, and was a general and important question, viz. Whether upon an action of covenant brought by a landlord upon a lease, and damages therein assessed by a jury, a Court of Equity has jurisdiction, or ought to direct issues for reassessing those damages? That there could be little doubt upon this question; because in all actions which found in damages, the court and jury have a complete jurisdiction to assess the damages. The verdict either can or cannot be set aside for excessive damages. If it can, the proper application is to the court where the action is brought if that court cannot set aside the verdict, the assessment of damages must be final; because the question, as to the quantum