The second rule is derived from similar considerations. Let us suppose a contract between parties, one of whom, for good consideration, promises to the other to do several things, and then it is agreed that the promisor shall pay, by way of liquidated damages, a large sum, if the promisee recover against him in an action for a breach of this contract. It must be supposed that this sum is intended and regarded as adequate compensation for a breach of the whole contract; for it is all that the promisor is to pay if he money, with proviso that if he refused, he was then to pay a larger sum as liquidated damages, said' " Such facts constitute no right to recover beyond the money actually due. Liquidated damages are not applicable to such a case. If they were, they might afford a sure protection for usury, and countenance oppression under the forms of law." See Bagley v. Peddie, 5 Sandf. 192; Williams v. Dakin, 22 Wend. 211, per Walworth, Ch.; Hoag v. Mc-Ginnis, id 163; Heard v. Bowers, 23 Pick. 455,462; Sessions v. Richmond, 1 R. I. 298, 303 , Plummer v. McKean, 2 Stewart, 423. But see Jordan v. Lewis, id. 426. This rule has also received the sanction of the Superior Court of New Hampshire, although that court has generally been decidedly in favor of applying the ordinary principles of construction to agreements for the liquidation of damages. Thus, in Mead v. Wheeler, 13 N. H. 351, 353, Gilchrist, J, said: "It is settled that when there is an agreement to pay a large sum, if the party fail to pay a smaller sum, the agreement to pay the penalty cannot be enforced beyond the amount of legal interest. Although in fact the creditor may suffer the most serious injury from the want of punctual payment of his debt, and the payment of principal and interest may very inadequately compensate him for his disappointment, still the payment of more than legal interest can not be enforced under the denomination of a penalty, although, if the agreement to pay a penalty be in accordance with the general usage and practice of a particular trade, it has been held that it might be enforced, even if it should exceed the legal interest. Floyer v. Edwards, Cow-per, 112; Ex parte Aynsworth, 4 Ves. 678. The payment of money being the thing to be done, as money is the only measure of damages, no closer approximation to the damages sustained can be made, than to estimate them at the sum agreed to be paid, and the 'interest thereon. This consideration, with the necessity of enforcing the laws against usury, affords perhaps as good a reason why the party should be compelled to pay no more than the sum specified, and the interest, as the iniquity of his paying a large sum for the omission to pay a smaller sum." In establishing this rule, the court seems to have been influenced more or less by a desire to prevent an evasion of the statutes against usury. But as it is settled that this class of cases does not come within these statutes, Cutler v How, 8 Mass. 257; Floyer v. Edwards, Cowp. 112, 115, per Lord Mans-field, we think the rule may more safely rest upon the grounds taken in the text, than upon considerations of that nature.

(h) In Astley v. Weldon, 2 B. & P. 346, 353, Heath, J., said: " Where articles contain covenants 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." The subsequent case of Reilly v. Jones, 1 Bing. 302, has been thought inconsistent with this principle, but it was not so considered by the court, but the sum mentioned was held to be liquidated damages, because it was so called by the parties, and the agreement was in substance for the performance of one thing only. See Barton v. Glover, Holt, N. P. 43. In Kemble v. Farren, 6 Bing. 141, the action was assumpsit, by the manager of Covent Garden Theatre, against an actor, to recover liquidated damages for the violation of an engagement to perform. There were several stipulations, of various degrees of importance, on each aide, " tome sounding in uncertain damages, others relating to certain pecuniary payments; and the agreement contained a clause, that if either of the parties should neglect or refuse to fulfil the said engagement, or any part thereof, or any stipulation therein contained, such party should pay to the other the sum of £1,000, to which sum it was thereby agreed that the damages sustained by any such omission, neglect, or refusal should amount; and which sum was thereby declared by the amid parties to be liquidated and ascertained damages, and not a penalty or penal sum, or in the nature thereof." Notwithstanding the strong expressions used by the parties, the sum was held to be a penalty, and not liquidated damages. But Tindal, C. J., said: " If the clause had been limited to breaches which were of an uncertain nature and amount, we should have thought it would have had the effect of ascertaining the damages, upon any such breach, at £1,000, thus restricting the application of the general rule cited above, from Astley v. Weldon, to cases in which some of the stipulations are of certain nature and amount." This decision has been followed in England, in Edwards v. Williams, 5 Taunt 247; Crisdee v. Bolton, 3 C. & P. 240, 243; Boys v. Ancell, 5 Bing. N. C. 390, 7 Scott, 364; Street v. Rigby, 6 Ves. 815; Beck-ham v. Drake, 8 M. & W. 846,853; Horner v. Flintoff, 9 id. 678; Galsworthy v. Strutt, 1 Exch. 659; Atkyns v Kinnier, 4 Exch. 776. The present state of the law in Eng-land may be gathered from the following remarks of Parke, B, in Atkyns v. Kinnier: "The rule of law, as laid down in Kemble v. Farren (which I cannot help thinking was somewhat stretched), was, that although the parties used the words ' liquidated damages,' yet, when the context was looked at, it was impossible to say that they intended that the amount named should be other than a penalty, inasmuch as the agreement contained various stipulations, some of which were capable of being measured by a precise sum, and others not; as, for instance, the plaintiff was to pay the defendant a certain weekly salary, which was capable of being strictly measured, and was far below £1,000; therefore, upon a reasonable construction of the covenant, the words' liquidated damages' were to be rejected, and the amount treated as a penalty. That decision has since been acted upon in several cases, and I do not mean to dispute its authority. Therefore, if a party agrees to pay £1,000, on several events, all of which are capable of accurate valuation, the sum must be construed as a penalty, and not as liquidated damages. But if there be a contract, consisting of one or more stipulations, the breach of which cannot be measured, then the parties must be