Fairlie and others, com'rs. of the alms house in the city of New York, against Lawson & Stanberry

Fairlie and others, com’rs. of the alms house in the city of New York, against Lawson & Stanberry. Judgment £ot the plaintion on a peproperly for the penalty, in all where the°demand is reduced by a set Off, within the £^5*15’d and if the $250*y CXCthe plaintiff is entitled to supreme court costs, though the damages recovered on an assignment of breaches be losSUian|250. cannot be tax-recoveryStupon a. bond, where be to e<compel the defendants to pay, (one of them being a surety,) beyond the penalty of the bond. A surety is not liable beyond the penalty of his bond. In debt on bond, conditioned for the maintenance of a J>astard child, in the penalty of $400, the plaintiffs assigned breaches according to the statute, (1 R L. 518.) The defendants, (one of whom was a surety,) pleaded payment $^64 25, and non damnijicatus beyond that sum. The defendants proving payment according to their plea, the C(yurt hcM that the plaintiffs could recover only $135 75, though they proved damages beyond this, over and above . 7, . . .. what had been paid. Ju<lge Irving taxed supreme court costs for the plaintiffs ; who insisted that he should also tax interest on the vei'dict to the time of the judgment, which he refused. It was now submitted, whether the costs should not have - - been taxed at the common pleas rate onlyand whether interest should not have been taxed, W. S. Johnson, for the plaintiffs. W. A. for defendantS. [MAJORITY — Curia.] Curia. The taxing officer was right in both particulars, In case of an action on a bond, other than for the payment °f money; (and indeed where it is for the payment of money except where it is met by a set off, in which case the J r J ’ condition is to be the measure of the judgment, (1 R. L. 515, 16,) the penalty is the criterion of cost. If that be more than $250, supreme court costs are allowed. (2 Cowen’s Rep. 412.) Interest is not allowable where it will swell the recovery to, or, in effect, compel the defendants to pay, in the whole, an amount beyond the penalty of a bond, especially against a surety. (Clark v. Bush, 3 Cowen, 151.) Taxation affirmed.