Chase v. Dearborn

Cole, J. This action was brought upon ah appeal bond, executed by the defendant Dearborn as principal, and by the other defendants as his sureties. The bond was given upon an appeal in an action of unlawful detainer, under section 1Y, chap. 151, R. S. The jury assessed the actual single damages which the plaintiff had sustained, at $155. Upon motion of the plaintiff’s counsel, the single damages found by the jury were trebled by the court, and judgment was given against the principal and [444] sureties in tbe bond for tbe amount of $465 damages, and costs of suit. Tbe question is, Does tbe bond cover treble damages ? Tbe bond conforms strictly to tbe requirements of section 17 above referred to, and is “ conditioned to pay all costs of sucb appeal, and abide by the order the court may make therein, and pay all rent and other damages justly accruing to tbe plaintiff during tbe pendency of sucb appeal.” It will be seen that this bond, by its terms, renders tbe parties liable to pay all costs of tbe appeal, and obligates them to abide tbe order tbe court may make in tbe action, and further makes them liable to pay all rent and other damages justly accruing to tbe plaintiff during the pendency of tbe appeal. There is, however, nothing in tbe language of tbe bond which renders tbe parties executing it responsible for treble damages, unless it be included in tbe words “and other damages justly accruing to tbe plaintiff.” Now the argument is, because, by a previous section (14), it is enacted that the plaintiff shall be entitled to an action against tbe person complained of who shall be found guilty on tbe trial, and may recover treble damages from tbe time notice was given to quit the premises, that tbe words “ other damages ” were intended to include the treble damages given by this provision, as well as all other damages whatsoever. But it appears to us that this is a forced construction of the language used in tbe condition of tbe bond. That includes in terms “all costs of sucb appeal,” “all rent, and other damages justly accruing to tbe plaintiff during tbe pendency of sucb appeal;” that is, tbe actual damage which tbe plaintiff may sustain by reason of tbe withholding of tbe possession, and by reason of any injury done to tbe premises in tbe meantime. The statute, in accordance with the general policy of the law, gives tbe defendant tbe right of appeal, but provides that be shall have the appeal pnly upon condition that he secures to tbe plaintiff tbe payment of “ all costs,” and “ all rent,” and all other damage and loss which the plaintiff may sustain by reason of any injury [445] done to tbe premises during tbe pendency of tbe appeal. But we do not think it was intended, in addition to this, that be should give a bond for tbe payment of treble damages; or that tbe sureties are liable for them. Tbe provision giving tbe plaintiff treble damages “against tbe person complained of, and wbo shall be found guilty on tbe trial,” is penal in its nature, and must be strictly construed. Tbe language of tbe bond does not, by any just and fair implication, include treble damages, and tbe obligors ought not to be held liable upon it for damages of that character. It follows from these views, that tbe judgment of tbe circuit court must be reversed, and tbe cause remanded with directions to render judgment for tbe amount of damages assessed by tbe jury. By the Court. — Ordered accordingly.