Crane v. Andrews

Macon, C. The answer is evasive, frivolous and largely made up of legal conclusions, which must have [268] been advanced in the argument on the demurrer, and overruled by the court, and it is not attempted to be defended by appellants in this court. The district court did right in striking it from the files. The second assignment goes to the sufficiency of the bond in suit to maintain the action against the obligors. While it is a peculiar instrument in some of its terms and conditions, and incomplete, affording less protection to the appellees than a bond in the statutory form would have done, it contains the conditions to prosecute the appeal' with effect and without delay, and pay whatever judgment might be rendered against appellant on the trial, or dismissal of his appeal in the district court; and it is for the breach of the latter condition that this suit was instituted. The conditions of an appeal bond are separate, and it is seldom that all are broken by the obligor, but suit for breach of any» material condition therein may be maintained. In this case the condition broken, as alleged in the complaint, is the neglect to pay the judgment of $399.25, and the costs in the district court, and those in this court, which were all due, and should have been paid, according to the terms and conditions of the bond, on the 26th day of April, 1883; the obligation to do which is clearly enough expressed in the bond. The district court did not err in holding the bond sufficient to support the action. The third assignment is founded upon the position that the penalty in the bond is the limit of the liability of the obligors therein, in an action on the bond, and that this limited recovery includes the costs of the suit, and damages for the detention of the debt assumed in and by the bond; and as the judgment here is for more than the penalty of the bond sued on, it is erroneous. It is needless to cite authorities to the doctrine that at this time the penalty in such bond is not considered as the debt, and is not the measure of recovery where the sum secured is less than the penalty. But where such sum is [269] equal to or greater than the penalty, the amount of the latter may be recovered, with damages for the detention thereof, from the breach of condition to the time of trial, with costs of suit. This rule has hot been settled without great conflict of decision, and is not the rule in some of the United States, and cannot be said to be settled in England. Sutherland, in his book on Damages, page 14, volume 2, states it thus: ‘ ‘ The weight of American authority, however, is in favor of allowing the interest as damages beyond the penalty. The penalty is the limit of liability at the time of the breach. Interest is afterwards given, not on the ground of contract, but as damages for its violation, for delay of payment after the duty to pay damages for breach of the condition to the amount of the penalty had attached,” — ■ citing a large number of cases in support of his position. The courts of the United States also give interest in addition to the penalty where the sum secured by the bond is equal to or greater than the penalty. United States v. Arnold, 1 Gall. 348, per Story, J.; Ives v. Bank, 12 How. 159. Nor is there any distinction between the extent of the liability of the principal and that of the surety on such bonds. In most of the cases cited in Sutherland on Damages, supra, the surety was involved, and interest was allowed against him. As the judgment in this case was not so great as the sum of the judgment for $399.25, with interest thereon from April, 26,1883,. when the same was rendered, to the 10th of April, 1884, when the judgment under review was rendered; the costs in the district court and in this court; nor so large as the penalty of the bond sued on, with interest from the date of the breach of its condition, to wit, the 26th day of April, 1883, to the date of the judgment complained of, — there is no error by reason of the amount of the latter judgment, and it should be affirmed. We concur: Rising, 0.; Stallcttp, 0. [270] Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the district court is affirmed. Affirmed.