Newton v. Rice

118 Mass. 417, 1875 Mass. LEXIS 388

Opinion

Gray, C. J.

In an action upon a bond, upon proof of a breach,

the judgment must indeed be for the penalty of the bond; but the amount due and payable in equity and good conscience must be determined by the court, or by a jury or assessor under its direction, before execution can issue, and the execution must be limited to the amount so found due. Gen. Sts. c. 133, §§ 9, 10. Austin v. Moore, 7 Met. 116, 125. Merrill v. McIntire, 13 Gray, 157. Fish v. Gray, 100 Mass. 191.

When the whole action is referred to arbitration by agreement of parties and rule of court, the reference includes everything which is required to be judicially determined in the case to entitle the prevailing party to execution, and includes both questions, whether there has been a breach of the bond, and what amount of damages the plaintiff is entitled to.

The award in this case was therefore within the authority ccs? - ferred upon the referees, and the judgment and award of exec* tian in conformity therewith must be Affirmed