Alendorf v. Stickle — 2 Cow. 412

Majority

p. 412

Alendorf against Stickle.

Headnote

The judgment, on a report of referees upon bond conditioned to pay money and perform covenants, though reduced by set off to $13, should be for the penalty, as a security for further breaches ; and the plaintiff shall have costs, according to the amount of the penalty. Otherwise, where the condition is for the payment of money only.

Debt, on the penalty of a bond for $3000, conditioned for the payment of $1500, and the performance of other acts; with a partial assignment of breaches. Plea, non est factum, with notice of set off, of accounts. The cause being referred, the referees reported a balance of only 13 dollars due to the plaintiff, who filed the report, and entered a rule for judgment, upon the penalty.

J W. Wheeler,

in behalf of the defendants, now moved for costs, to be set off against the plaintiff’s recovery ; and that the judgment be corrected according to the statute, (1 R.L. 515, 516,s.l.)

H. B. Davis, contra.

The plaintiff is entitled to judg ment for the penalty, as a security for further breaches. (1 R. L. 518, s. 7. Hodges v. Suffelt, 2 John. Cas. 406. Pearson v. Bailey, 10 John. 219 .) Had the sum been found by verdict, there would have been no doubt of this. Does finding the same sum, upon reference, alter the case ? Here is a discount, by set off, from $1500 to $13. The claim exceeded $400, within the statute, (L. N. Y. sess. 41, ch. 79, s. 1.)

Wheeler, in reply.

The plaintiff does not take his judg ment for the penalty, but for the balance found. (1 R. L 516.) The provisions referred to, in the 50 dollar act, relate to accounts not bonds.

The plaintiff must take costs according to his judgment, which is for the penalty. Godfrey v. Vancott, 13 John. 345 .) It is peculiarly proper, in this case, that it

p. 413

should be so, for the bond is conditioned, among other things, to perform covenants; and the judgment ought to stand as security for further breaches. It would have been otherwise, had it been merely for the payment of money. (Van Antwerp v. Ingersoll, 2 Caines’ Rep. 107 . 1 R. L. 515, 516.)

Motion denied.