The principle of this statute has been fixed in American legislation. By the judiciary act of the United States, (2) the Supreme Court is authorized, in case of affirmance of any judgment or decree, to award to the respondent just damages for his delay. And by the rules of the same court, (r) in cases where the suit is defended for mere delay, damages are to be awarded at the rate of ten per centum per annum on the amount of the judgment, to the time of the affirmance thereof. Where there is a real controversy, the damages are to be at the rate of six per cent. per annum only. And in both cases, the interest is to be computed as part of the damages. It is therefore entirely for the decision of the court, whether any damages, or interest as a part thereof, are to be allowed or not, in cases of affirmance. (s)

The same principle has been followed in New York, where it is provided by statute, (t) that "If upon writ of error, the judgment be affirmed, or the writ be discontinued or quashed, or the plaintiff in error be nonsuited, the defendant in error shall recover costs, and also damages for the delay and vexation, to be assessed in the discretion of the court before whom the writ was returnable." The limit of discretion under this statute is legal interest. The allowance of damages, however, in these cases rests entirely in discretion; and so, where the action was in tort, the Court of Errors refused it. (u) (1) It was allowed, however, in

another case, on a judgment in trover. (v) But this branch [389] of the subject rather belongs to the head of statutes regu

lating damages, which we shall elsewhere consider.

The allowance of interest on judgments generally has been a subject of much discussion. In England, the doubt is solved by a recent statute, which declares that every judgment debt shall carry interest at the rate of four per centum per annum, from the time of entering up the judgment, or from the time of

(q) 1789, ch. 20, § 23.

(r) Made in February term, 1803, and February term, 1807.

(8) Boyce's Executors v. Grundy, 9 Peters, 275. Himley v. Rose, 5 Cranch, 313. Santa Maria, 10 Wheat., 431-442. (t) 2 R. S. 618, § 33.

(u) Gelston v. Hoyt, 13 J. R., 561. (v) Bissell v. Hopkins, 4 Cowen, 53. In the same State it has been said that,

"the judicial doctrine of allowing and disallowing interest on judgments, whether on affirmance in error, or in other cases, seems in some respects to rest rather upon arbitrary discretion, practice, or precedent, than any principle which conforms to our general notions of justice." Kloek v. Robinson, 22 Wend., 157 and 160.

(1) See Hoard v. Garner, 4 Sandf. (N. Y.) 677.

the passage of the act in cases of judgment then entered up and not carrying interest, until the same shall be satisfied; and such interest may be levied under a writ of execution on such judgment. (uu)

In New York, it has been decided that interest is recoverable in an action of debt on judgment, whether the original demand carried interest or not. (vv) (1) But in debt on judgment for a tort, interest is recoverable only from the date of the judgment, and not from the finding of the verdict. (2) Where the judg ment is rendered on contract, it can in New York, by express statute, be collected on execution. (x)

How far interest is recoverable under the penalty of a bond, we shall have occasion to examine in the next chapter.

It has never been doubted, that where interest is made payable before the principal, suit can be brought for the non-payment of the interest alone; (y) (2) but an important question has been presented, how far an action can be maintained for interest after the payment of the principal. In New York, it has been decided that where interest is not stipulated for in the contract, but is recoverable merely as damages, a creditor is precluded from sustaining an action for its recovery after accepting the principal;

(uu) 1 & 2 Vict., c. 110, § 17. See Fisher v. Dudding, 3 Scott N. Rep., 516. See, also, Crafts v. Wilkinson, 4 Q. B., 74. (vv) Klock v. Robinson, 22 Wend., 157, where the English cases are reviewed.

(w) Lord v. The Mayor of New York, 8 Hill, 426.

(x) Sayre v. Austin, 3 Wend., 496; 2 R. S., 364. It had been previously decided otherwise. Watson v. Fuller, 6 J. R., 283.

(y) Cooley v. Rose, 3 Mass., 221.

(1) A creditor by judgment recovered in a foreign court, who comes in under a creditor's bill and proves his demand, is entitled to interest on the amount of the judgment from the time it was rendered, although it does not appear whether the judgment bears interest by the law of the country where it was rendered, or not. Nelson v. Felder, 7 Rich. (S. C.) Eq., 395.

In an action of assumpsit, on a promise to pay the amount of a judgment from which defendant had been discharged under the insolvent debtor's act: Held, that the true measure of damages was the amount of the debt, interest and costs, on the day of the entry of the judgment, with interest on the amount from the day of the entry to the day of trial. Gatewood v. Moses, 5 Richardson, (S. C.) Law, 244. As to the allowance of interest on the costs on a judgment, see Rogers v. Burns, 27 Penn. St., 525.

(2) Upon a note for money payable at a future pay day, whether in an entire form or by installments, "with interest to be paid annually," the interest which may have accrued in any year may be recovered, if sued for before the pay-day of the principal. Bannister v. Roberts, 35 Me., 73.

but that where interest is stipulated for in the contract, suit may be brought for it, although the principal has been paid. (2)

So, payment of the amount of principal money due from a

debtor to his creditor, will not necessarily prevent an [390] action for the amount of interest. If made generally, it applies first to extinguish the interest, and the balance may be sued for as the principal. (a)

It seems well settled that where an attachment or injunction is laid on a party liable to pay interest, it ceases running till the legal impediment is removed. (b)

(2) Fake v. Eddy's Ex'rs, 15 Wend., 76. (a) People v. County of New York, 5 Cowen, 331.

(b) Willing v Consequa, Peters' C. C. R., 301, 321; Fitzgerald v. Caldwell, 2 Dall., 215; 2 Yates, 280; Osborne v. U. S. Bank, 9 Wheat., 738; Stevens v. Bar

ringer, 13 Wend., 639; Le Braithewait v. Halsey, 4 Halsted, 3.

See, also, Kellogg v. Hitchcock, 1 Wend., 521; Bainbridge v. Wilcocks, Baldwin's C. C. R., 536; Legrange v. Hamilton, 4 T. R., 613; 2 H. Black., 144.

CHAPTER XVI.

OF PENALTIES; LIQUIDATED DAMAGES; AND THE COMMON LAW ACTION OF DEBT.

Debt and Covenant-Debt on Bond-Amount of recovery within the Penalty-Assignment of Breaches-Liquidated Damages-Ne-Exeat Bonds-Bonds to resign Livings Recovery beyond the Penalty.

We have just terminated the consideration of a large class of cases, in which the damages are in no wise determined by the agreement of the parties. We now come to another class, where the contracting parties fix or liquidate the amount that shall furnish the measure of compensation in case of non-fulfillment of the agreement, either in the shape of a penalty, or of stipulated damages. The questions arising under this branch of our subject are generally presented in one of the two common-law actions known as debt and covenant; but we shall endeavor to consider the matter at large, without confining ourselves strictly to either of these technical forms.

At the same time it is impossible altogether to dismiss them from view. The common-law action of debt is applicable in all cases where a sum certain is due, whether the contract be by parol under seal, or of record; while covenant is the remedy for breaches of all contracts under seal, whether for sums certain or uncertain. And owing to this arbitrary division of actions, the rules of damages conform in many cases rather to the remedy than the right; we must therefore not lose sight of this technical distinction.

Of all forms of debt, that of debt on bond has latterly been the most frequent. In the early periods of our jurisprudence debt was the common action for goods sold and delivered, and for

work and labor done; but it was subsequently to a great [392] extent superseded by the proceeding in assumpsit. (c) It is true, as a general rule, that in the action of debt, which is brought for the recovery of a sum certain, no damages can be claimed on account of the debt itself, this being recoverable in numero; but damages are given on account of the detention of the debt. In an action of debt on bond, therefore, only nominal damages are assessed; nor is it in general necessary to have them assessed to the amount even of what is due for interest, because as under the verdict the plaintiff is entitled to the whole penalty; this, which is double the sum mentioned in the condition, is usually sufficient to cover what is due for interest. But this subject will be more fully noticed in another part of this chapter.

The form of the obligation, or bond of the English law, is technical and peculiar. The obligor binds, or obliges himself to pay a certain sum of money at a certain time, to the obligee. This, if under seal, would be a single bond, or simplex obligatio; and would only differ from a note, in being under seal, and not negotiable. But in the bond we find a clause appended, declaring that the previous obligation shall be void on the payment of some lesser sum of money, or the performance of some particular act. The latter part, or condition, of the bond, is that which discloses the real nature of the contract, and contains its essence; the former part is the penalty. (d) Penal obligations are well known to other systems of law besides our own; (e) but the precise form of contract by which an absolute obligation is at first declared, and this converted into a mere penalty by the addition of a subsequent condition, is, I believe, entirely peculiar to the English law.

From this form of obligation or contract, various results, flowing from the technical rules of the common law, were deduced by the founders of our jurisprudence. If the condition was not strictly complied with, as in regard to the payment of money on a day certain, the moment the day was passed the penalty became the debt, and was at law recoverable; and neither payment nor tender after the day would avail, because a condition once broken was gone forever. If the condition were to do any thing [393] other than pay money, and were not fulfilled, the pen

(c) Ante, 237; Rudder v. Price, 1 H. Bl., 547.

(d) Black. Com., II., ch. 20, 340.

(e) Pothier, Traité des Obligations, Part II., chap. v., des Obligations Pénales.