Lansing v. Capron

The Chancellor. It •'ppears from the anthorities cited on the part of the defendants, to be settled in the courts of law, that in an action of debt upon a bond, with a penalty for the payment of money by instalments, when only part of the instalments are due, the defendants may bring into court the money, with the costs accrued. This is held to be within the equity, though it is not within the letter, of the statute of 4 Ann. ch. 16., and from which our act was taken. That statute relates to the bringing in the whole amount of the condition of thebond pending the action, so that the bond may be discharged. But in those cases the permission is upon terms, by allowing the plaintiff to enter judgment for the penalty, to stand as a security for the future instalments. The reason assigned for this permission to the plaintiff is, that the bond is forfeited, and become absolute at law, and the plaintiff is entitled to the benefit of that legal advantage so far as to take judgment for the penalty, to stand as a further security; and because it is not reasonable that the obligee should be put to a new action for every fresh default. The principle, at law.. 619 has considerable, though not entire, application to this case. There is no need of the entry of a decree of foreclosure to give security to the debt, for the lien subsists, and its value is increased, by every payment. But, on the other hand, the institution of new suits in this court, on every default, is more expensive, and may be difficult, by the change of parties, in relation to the fund; and it is the policy of this court to prevent multiplicity of suits. It is, therefore, reasonable, since the plaintiff has been put to his suit to recover the instalment due, that the party applying should put in an answer, confessing the debt, or consent to a decree of foreclosure, to remain subject to the order of the court upon a subsequent default; and that the question of costs, on taking such a decree, be subject to the like order. If the future instalments be punctually paid, I shall, probably, not charge the defendants with the further costs. I shall, therefore, order, that the party applying have leave to bring into court the principal and interest now due, together with the costs hitherto accrued, on his enabling the plaintiff, by answer or consent, to take a decree of foreclosure on the terms aforesaid. Order accordingly.