Governor v. Daniel

1 Charlton 449

• Court: Chatham Superior Court, Ga.
• Decided: May 15, 1835
• Status: Published

Opinion

By MICOlffL, Jfiitlge.

IN the case out of which this question arises, which was an action of debt, upon a bond conditioned for the performance of certain acts, an issue of fact was joined, and the determination of it was submitted to the Jury.

To the Jury, therefore, exclusively belonged the trial of the point involved in the issue, and the ascertainment of the amount which the plaintiff was entitled to recover. The inquiry then, in the present proceeding, is not whether interest could have been recovered on the bond, on which the action was instituted, but whether such interest has been awarded. The Jury have assessed no damages upon the breach assigned, but have, by their verdict, simply found the debt, with nominal damages. That debt is the sum mentioned in the obligation. It is not necessary to decide whether, if the obligor had, by the teims of the bond, bound himself to pay the sum specified, with interest thereon, the interest would not be considered a part of the debt, and a finding by the Jury of the deed, would not have been a verdict for the specified sum and interest— for the bond in this case, contains no agreement for the payment of interest, but merely binds the party to the payment of a certain sum of money, without any stipulation as to interest; nor is it conditioned for the payment of a sum of money, at a day certain, nor indeed for the payment of any sum, but for the performance of a duty. A verdict of the Jury, therefore, affirming the obligation, finds nothing more than the debt specified in it, to wit, the sum of $400. (Page vs. Newman, 9 B. & C. 378. 17 C. L. Reps. 400. Hillhouse vs. Davis, 1 M. &S. 170. Foster vs. Weston, 6 Bing. 707. 19 C. L. Rep. 211. Higgins vs. Sargent, 2 B. & C. 348. 9 C. L. Rep. 101, 103. Arnott vs. Redfern, 3 Bing. 353. 13 C. L. Rep. 3. Hogan vs. Page, 1 B. & P. 337, n. Craven vs. Pickell, 1 Ves. Jr. 60, 63. Esparte Koch, 1 V. & B. 345. 1 Howend. Fraud. 63. 5 Cowen 608, 9, 10. Laing vs. Stone , 2M. & R. 561. 17 C. L. Rep. 320. Du Belloix vs. Ld. Waterpark, 1 D. & R. 16. 16 C. L. Rep. 12. Cameron vs. Smith, 2B. & A. 305. Lee vs. Lingard, 1 East. 401, 403. Frith vs. Le Roux, 2 T. R. 33. Francis vs. Wilson, R. & M. 105. 21 C. L. Rep. 391. 13 Wheat. 340, 244, argo.) And such being the nature of the bond, St is obvious, as well because interest could be awarded upon it only In 'the shape of damages, which could be assessed only by the Jury, as because of the reason already .stated, viz: .that issue of fact was joined, which was submitted by the Jury, that in the absence of a finding by the Jury of such interest, execution cannot be had for it. The verdict here determines nothing more than would have been ascertained and fixed by a judgment by default. (Arch. Appx. 336. The People vs. Hallett, 4 Cow. 67.) But upon such judgment by default, there is nothing in the record of this case, that would authorize the recovery of interest from the date of the bond, from which date it is computed in the execution.

But besides this, the .execution is not warranted or sustained by the judgment upon which it professes to be founded, andón which only it can issue. That judgment is for damages only, whereas the execution is for debt as well as for damages.

The opinion of the Court is, therefore, that the execution hag issued illegally.

Execution set aside,