Toles v. Cole

Opinion by Treat, C. J.: The action was debt, on a bond, in the penalty of $500, conditioned for the payment of whatever judgment might be recovered in a specified suit. Plea, non est factum. Verdict, “We, the jury, find for the plaintiff two hundred eight-one dollars and eighty-one cents; ” and judgment accordingly. The jury should have found the amount of the penalty of the bond, as the debt, and the amount of the recovery in the action referred to in the condition, as the damages; and the proper judgment thereon would have been for the amount of the debt, to he discharged on the payment of the damages and costs. The case of Austin vs. The People, ante, 452, and the authorities there cited, are decisive. Reverse the judgment, with costs, and remand the cause for further proceedings. Judgment reversed.