United States v. Meeker

26 F. Cas. 1234, 6 Chi. Leg. News 70, 18 Int. Rev. Rec. 166, 30 Leg. Int. 344, 9 Phila. 470, 1873 U.S. Dist. LEXIS 39

• Court: District Court, D. New Jersey
• Decided: October 10, 1873
• Status: Published

Opinion

NIXON, District Judge.

After a careful examination of the authorities, I am satisfied that the judgment in this case should be entered for $20,000 (the penalty of the bond) of debt, and for the sum of $- for damages, being interest on the penalty from the twenty-seventh day of January, 1S07, the date of the original writ. That time is fixed for the beginning of interest, because there was no proof of any previous demand upon the surety. This view, I think, is sustained by the following authorities: 2 Greenl. Ev. § 263; Long’s Adm’r v. Long, 1 C. E. Green [16 N. J. Eq.] 59; U. S. v. Arnold [Case No. 14,469], affirmed by the supreme court, 9 Cranch [13 U. S.] 104; Bank of Brighton v. Smith, 12 Allen, 243; Harris v. Clap, 1 Mass. 308; Warner v. Thurlo, 15 Mass. 154; Brainard v. Jones, 18 N. Y. 35; and Lonsdale v. Church, 2 Term R. 388. The earlier and later cases are reviewed, and the whole subject discussed, in Long’s Adm’r v. Long, by Chancellor Green, with his usual learning, discrimination and skill. I am aware that the courts in England have been in doubt in this matter, and that the cases of White v. Sealy, Doug. 49; Wilde v. Clarkson, 6 Term R. 303; and McClure v. Dunkin, 1 East, 436,—greatly impair, if they do not destroy, the authority of Lonsdale v. Church, supra. I have also adverted to the fact that the late Justice McLean, in Lawrence v. U. S. [Case No. 8,145], while admitting the reasonableness of the rule, that gives interest on the penalty, from the demand upon the surety, or from the breach of the condition, felt constrained by the authority of Farrar v. U. S., 5 Pet. [30 U. S.] 385, to hold that no more than the penalty could be recovered. But a closer examination of this last case, gives force to the suggestion, that what was said upon the question I am now considering, were obiter dicta, in no wise necessary for the decision of the point there under consideration. The court was reviewing exceptions to the form of the judgment —the jury having found for the plaintiff below on the breach assigned, and assessed the damages for the breach of the condition at $41,000, and the judgment that had been' rendered thereon, was “quod recuperet”—the damages, not the debt. All that was needful to be said in such a case was, that in an action for debt, a judgment for damages simply, could not be cured or amended. Let the judgment be entered in accordance with this opinion.