Sons v. Nielson
| Decision Date | 31 July 1809 |
| Court | North Carolina Supreme Court |
| Parties | WARDEN & SONS v. NIELSON. |
In a suit upon a penal bond the plaintiff is not entitled to recover beyond the penalty.
THIS was an action of debt, brought upon a penal bond given by the defendant to the plaintiffs, merchants in Philadelphia, on 6 November, 1774, payable 1 February, 1775. The defendant removed from Pennsylvania, and settled in this State. On 15 May, 1794, the defendant wrote to the plaintiffs, acknowledging the debt, and praying further time for payment. On 26 December, 1805, he wrote to the same effect, and on 4 November, 1806, he wrote to the agent of the plaintiffs, expressing
a hope that they would take the amount of the penalty of the bond, divided into three annual payments.
Defendant failing to make payment, this suit was commenced on the bond, the condition of which was in the following words:
"The condition of the above obligation is such that if the above bounden William Nielson shall well and truly pay to the said Jeremiah Warden & Sons the just sum of $782.21, with lawful interest until paid, then the above obligation to be void; otherwise, to remain in full force and virtue."
The jury, under the direction of the court, gave a verdict for the penalty of the bond, to wit, $1,564.42, and $750.95 for interest, by way of damages, subject to the opinion of the court whether the plaintiffs were entitled to recover beyond the penalty of the bond.
Whether, in an action of debt on a penal bond, the plaintiff can recover a greater sum than the penalty seems to have been a question for a long time unsettled in the English courts; but from an examination of the casescited upon the argument of this case it will appear always to have been the better opinion that no such recovery could be had, at least, in a court of law, until the decision reported in 2 Term, 388, made by Justice Buller, in conformity with the opinion expressed in his Law of Nisi Prius, 178. This decision, however, was afterwards overruled by Lord Kenyon, 6 Term, 303. And in McClure v. Knight, 1 East, 426, the law seems to have been considered by the counsel and the Court as settled, for the only question made in the argument was whether, on a judgment rendered in Ireland on a penal bond, the plaintiff in a suit brought in England on such judgment was entitled to recover beyond the penalty, which was properly decided in the affirmative, on the ground that the nature of the demand was altered by the judgment, and that it was competent for the jury to allow interest on what was there ascertained to be due. The other eases cited by the plaintiff are Bunbury, 23, and 2 Dallas, 252.
The first is a chancery decision, and is reported by the reporter in a line and a half, in which he states "that interest...
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