Mary Carter against John Carter

Mary Carter against John Carter. June, 1809. terestthereon, although satisfaction may obtained bfor every breach tion. The obligee of a bond can recover no more than the penalty with in- WRIT of error. This was a scire facias on a judgment in debt on bond. The penalty of the bond was 500 dollars. The condition was for the payment of 100 dollars annually to . . Mary Carter, during her life, and the lawful interest for any sum after the same should become due. The bond was dated the 1st of October, 1799. The first instalment became due on the 6th of September, 1800; soon after which, a judgment was obtained on the bond, and execution issued for the instalment then due. Four other instalments, with the interest which had accrued on them, were afterwards recovered by scire facias. The obligee being still living, this scire facias was brought to recover two additional instalments. The defendant pleaded the former recoveries in bar; to which the plaintiff demurred. The court adjudged the plea sufficient. Bradley, for the plaintiff in error. It will be agreed, that in actions upon bond with a condition, by the ancient common law, in case of the breach of any particular of the condition, the penalty and damages of one shilling for the detention, were given. 3 Bac. Abr. 691. old edit. This principle operated hardly upon the obli-gor, in cases where, by the terms of the condition, st' less sum was due than the penalty; and it was equally hard upon the obligee, where more was due than the penalty. To 'remedy this hardship upon the obligor, two statutes were made. The stat. 4 and 5 Ann. provides for all cases where, by the terms of the condition, a less sum is to be paid, on a day certain, than the penalty of the bond. -£¾⅞. Dig. 225. and 264. Dub. edit. And the stat. 8 and 9 Wm. III. extends to all cases of bonds conditioned for the performance of agreements in writing, a breach of which may happen at different times; and has been construed to extend to cases where such an agreement is contained in the condition of the bond, and so to comprehend annuity bonds, and bonds payable-by instalments. By the terms of this statute, the court must enter up judgment for the precise amount of the penalty, and then assess damages by a jury for the breaches which have happened; and the penalty is to remain a security for future breaches. Collins v. Collins, 2 Burr. 824, 825. Willoughby v. Swinton, 6 East, 550. White v. Sealy et al., Doug. 48. Lonsdale v. Church, 2 Term Refi. 388. Wilde v. Clarkson, 6 Term Refi. 303. Bragwin v. Per rot, 2 Bla. Refi. 1190. There has been no statute in England to enable courts of law, in favour of the obligee, to give damages to cover the value of the condition, in cases where the sum in the condition exceeded the penalty of the bond; though there was the same reason for making the condition the rule of damages in favour of the obligee as in favour of the obligor. The form of the judgment, however, would admit of their doing this under the name of damages. But they were restrained from do? ing it by stat. 8 and 9 Wm. III. in all cases of accumulae ting damages. The only case in which they could do it seems to be the case of a condition for the payment of a less sum than the penalty at a time certain, and the accumulation of interest upon the sum in the condition until it exceeds the penalty. In such case, the court is not restrained by the stat. 8 and 9 Wm. III. and, therefore, they have given real damages to cover the sum mentioned in the condition, ivith interest. Esfi. Dig. 662. Dub. edit. Bull. JV. P. 178. Com. Dig. tit. Obligation, (E.) Hóldififi v. Otway, 2 Saund. 106. Perit y. Wallis, 2 Dal. 252. Catlin y. Allen, Circuit Court U. S. District of Vermont, There does not exist a reason why a court should allow interest beyond the penalty of a bond, which does hot apply with equal or greater force in favour of allowing the growing instalments of an annuity, though they should exceed the penalty of the bond by which they are secured, except the restraint imposed in England by the stat. Wm. III. With respect to courts of chancery, they, cannot exceed the penalty of a bond, because they cannot assess damages. They would also think it inequitable to do it, in cases where third persons might be affected. Mackworth v. Thomas, 5 Ves. jun. 329. Bromley v. Goodere, 1 Atk. 75. Tew v. Lord Winterton, 3 Bro. C. C. 489. But, in all other cases, courts of chancery disregard the penalty of a bond, and consider the condition as containing the real contract. Upon this principle they used anciently to relieve the obligor from the penalty ; and upon this principle they will compel the execution of an agreement contained in the condition. Mackworth v. Thomas, ut supra. Collins v. Collins, 2 Burr. 826. Pow.on Cont. 313. 2 Evans’s Pothier, 108, 109. Upon the principle for which I contend, if the obligee had not sued the bond until this time, she might now, in a suit upon it, recover for all the instalments. If I am right, it will not be disputed, but that she may recover for the same on this scire facias. But whatever may be the rules of the English courts, either of law or chancery, on this subject, I contend, that the plaintiff is clearly entitled to recover under our statute. By the first breach of the condition, the bond is to be forfeited; and the court are to proceed to consider what is due in equity, at that time, and enter up judgment for the same. Here it will be admitted, that in order to ascertain what is due in equity, the con dition is to be regarded. It is that which is to furnish the rule. The statute then provides, that upon any further or other breach, or neglect of performance of . . . . . any other particular m the condition, the obligee may take out a scire facias, and the court shall proceed to make up judgment for what shall appear in equity to be then due, with additional costs; and so from time to time, till all the particulars mentioned in the condition are performed. Aside from the last clause, it is evident that the court'must here ascertain what is due in equity in the same manner as on the first breach, viz. by looking at the condition. But the last clause of the section seems as explicit as language can be. The court are directed to give judgment, from time to time, for what shall appear in equity to be due, till all the particulars mentioned in the condition are performed, without restriction, and without reference to the amount of the penalty. Indeed, the penalty is not alluded to in any part of the section. E. Perkins and Staples, for the defendant. l.What would have been the effect of this contract at common law, before any statute in this country, or in England? Where a bond was given for the payment of money on a particular day, and the money was not paid at the day, the obligee would always recover the whole amount of the penalty at law; and the obligor was compelled to go into chancery for relief. But in England, by stat. 4 and 5 Ann. this was so altered as that the just sum due should be recovered. This statute was made in 1705. Such was also the common law in this state. At an early period, our courts were empowered by statute to render judgment for the real sum due. In an act which appears in the first edition of our statute-book, printed in 1672, many years before the English, statute of Anne, it is made the duty of the court to determine “ any mat' ter of apparent equity, as upon thé forfeiture of a bond or obligation.” Penal bonds with conditions, the breach of which may happen at different periods; also with conditions for the performance of some collateral agreement, were, at common law, forfeited, on the happening of the first breach; and the whole penalty might be recovered at law. On these bonds, the obligor was compelled to go into chancery. To relieve the obligor in these cases, in England, the stat. 8 and 9 Wm. III. was made, providing that no more than the sum justly due should be recovered; and that the plaintiff might assign as many breaches as he pleased, This statute was made in 1697. In this state, in 1735, a statute making similar provisions was enacted. Where the condition bf the bond contains an agreement to do some collateral act, the obligee may now, as before these statutes, call the obligor into a court of chancery, and have a specific performance. But if he waives this privilege, and sues the bond at law, the defendant can avail himself of these statutes. It must be admitted, that before these statutes, the obligee could never recover any thing more than the penalty of the bond. This is the extreme point, fixed by the parties, beyond which the obligee may never go. We ask, then, if these statutes were made to enlarge the claims of the obligee upon the obligor, and that even beyond their agreement ? 2. The following decisions, arranged in chronological order, will show that the English courts will not exceed the penalty of a bond. 1658. Hugh Andely’s case,Hardr. 136. 1671. Holdipp v. Otway, 2 Saund. 108. [This case, though it apparently opposes the principle, really supr ports it.] 1674. Davis v. Curtis, 1 Chan. Cas. 229. [In point] 1685. Hale \. Thomas, 1 Fern. 349. 2 Chan. Cas. 182. 1705. Steward v. Rumball, 2 Fern. 509. 1707. Anonymous, 1 Salk. 154. 1708. Elliot v. Davis, Bunb. 23. [Penalty and interest given. Short note.] 1720. Lord Dunsany v, Plunkett, 4 Bro. Pari. Cas. 517. Toml. edit. 1721. Town of Galway v. Russell, 4 Bro. Pari. Cas. 523. Toml. edit. 1757. Grosvenor v. Cook, 1 Dick'. 305. 1759. Collins v. Collins, 2 Burr. 820. 1769. Gibson v. Egerton, and Bumstead v. Stiles, i Dick. 408. 1775. Kettleby v. Kettleby, and Rundle v. Pettit, 2 Dick. 514. 1778. Bragwin v. Perrot, 2 ¿⅛. 1190. n .. White v. Sealy, Doug. 49. . Lord Lonsdale v. Church, 2 Term Rep. 388. /¡eñ_ Buller, J. 1792. Tewv.' Winterton, 3 -Bro. Chan. Cas. 489. 496. 1795. Lloyd v. Hatchett, 2 Anstr. 525. JFzVcte v. Clarkson, 6 Term 2?e/n 303. /;er Lord Kenyon. 1797. Sharpe v. Tar/ of Scarborough, 3 Fee. jun. 557,. 1800. Mackworth v. Thomas; 5 Fee. jun. 329. 1801. McClure v. Dunkin, 1 East, 436. ■. — . Clark v. Seton, 6 Fes. jun.'411. Our courts have given interest beyond the penalty, Dot on the ground that they could give damages beyond the penalty, but upon the ground that where the whole penalty is given, it is a liquidated sum, and, as such, will carry interest. 3. But it is claimed, that by our statute the common law is changed; and the penalty of the bond is to' stand to secure the fulfilment of each particular of the condi- . . . , . tion. In answer to this, it may be remarked, in the first place, that our statute is similar in its provisions to, the English statute of 8 and 9 Wm. III.; and no such con* struction was ever thought of in that country. But, in the next place, this would not be a fair construction of the contract. The fair construction of the contract is, that the obligor will pay 500 dollars to the obligee in annual instalments, if the obligee live long enough tq call for the whole. If the other construction be a sound one, it follows, that by the provisions of a statute intend? ed to give the defendant relief, he is in a much worse condition than he was before the statute. Stat, Conn, tit. 6. c. 1. 6) Ibid. s. 8-, Stat. Conn. tit. 6. c. 1. s. 9. Vide Brit. Stat. yol. 11. p. 158* Pickering’s edit. Stat. Conn■ p. 37. edit. 1072. 5) Vide Brit. Stat. vol. 10. p. 19, 20. Pickering’s edit. [MAJORITY — By the Court.] By the Court. The contract of the parties is only' to pay the penalty, in case of failure to perform the conditions annexed to it; and the court cannot extend such contract beyond its obvious meaning, for the sake of doing some supposed equity to the obligee. The statute regulating pivil actions gives the courts power to render judgment for less than the penalty, where justice requires it, but was not intended to authorize the court, in any case, to give more. The penalty becomes forfeited, however, on the first breach; and as it then becomes a debt due unconditionally to the obligee, the court may allow interest from that time, but can never exceed the penalty, with interest on it from the first breach. Judgment affirmed.