Page:United States Reports, Volume 2.djvu/260

 _ :,*4 Casas ruled and adjudged in the t·]g6. knit payable on a certain day, ademand is not necehry tobe vvu made, or proved. Imp. Mad Pr. nga. aoa. The p aintitf might have proceeded on the covenant in the original deed, and would doubtlefs be then entitled to recover damages commenfu. rate with the injury 5 and the penalty is- only a collateral guard tg, the agreement, providing a further remedy at law. 1 Fen}!. . I4!. _ _ For the defendant, it was premifed, that a great contrariety of opinion appeared, in the cafes on this fubject ; and that a rule had certainly been adopted in the Court of Chancery didt-· rent from that which prevailed in the Courts of Common Law 5 the former allowing interelt, fometitnes even exceeding the pe- nalty, but the latter always refnling it. 3 Br. {Ib. Rep. 489. 496. When, however, the allowance was made, itwas cnn- fined to cafes of Bonds for the payment of money, where intereft, 4 by acomputation on the fum mentioned in the condition, may exceed the penalty; but the prefent queition mult be claiied with the cafes of fixed and afcertained damages ; and there is no iniiance, in fuch acafe, of more than nominal damages be- ing given beyond the penalty, and that merely for the purpofe of entitling the party to his coiis. Ii Bl. Rep. 1 r. 1 C¢r in Cb. 226. 16 Vin. 303. pl. ro. 1 Vern. 3 go. The penal. py is the fixed and ilipulated extent of the damages for not per. ormingthe contract, including all delay, vexation and intereit : It maybe regarded as fuch, without any exprefs declaration in the inflzrument ; and whatever is the contract of the parties muii: prevail; for, modur et corrvmtis vineunt Ieg. H. _BI. Rtp. 231. 232. In 2 Bl. Rap. 1 rgo, there is the cafe of an indemnity bond, which is precifely analogous to the prefent bond; and ` the Chief juflice there declared, that as me penalty of the bond afcertained the damage by confent of parties, the plaintiff was in- titled to recover no more. Equity will relieve againlt a penalty; but it willinever go beyond it. 4 Burr. 2228. It is true, that if the plaintiff had proceeded on the original covenant, he might have recovered damages to the amount of any injury that he could prove; but having proceeded for the penalty of the bond, - which was taken by way of collateral fecurity, he has himfelf cho- fen to make that the meafure of his recovery. All the cafes cited on the other fide, are bonds for the payment of money ; except thofe arifing under iiatutcs ; and, it is not contended that in them the damages are carried beyond the penalty, where it is given to a common informcr, but only where it is given to the party a- grieved ; when, perhaps, the damages actually fuitained, are lairly to be computed from the time the injury was done, and no· thing is to be prefumed from the contract of the parties. Be- lidus the penalty, though due in {lrictncfs at the expiration of dx months, was only payable on demand ; the interelt could, therefore,

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