#### John G. Bond *versus*Abel Cutler.

The condition of a bond was, that the obligor should pay to the obligee such sum as the latter should recover in damages and costs, in an action then pending between them; to an action on this bond the defendant pleaded, in bar, that the plaintiff had recovered judgment for so much, and sued out his execution thereon, which had been returned fully satisfied ; and the plea was adjudged good.

Debt on bond for 1200 dollars, the condition of which, upon oyer had, recites that the plaintiff, at the S. J. Court in this county, October term, 1809, obtained a verdict against the defendant for 740 dollars damage and 147 dollars 72 cents costs; and the defendant had moved for a new trial of the action ; “ if the said motion should be overruled by the Court, and a new trial be refused; if he, the said *C.,*shall pay to the said *B.*the amount of such damages and costs, with interest; and in case a new trial shall be granted him, the said *C.,*he shall prosecute the same, and shall answer and pay to the said *B.*such sum as he, the said *B.,*shall recover in damages, together with costs, without fraud, &c.; — then this obligation to be void; otherwise to remain in full force.” Whereupon the defendant pleads, in bar of the action, that his motion for a new trial was not overruled; that such proceedings were had in said action, that, at April term, 1811, the plaintiff recovered judgment for 783 dollars damage, and costs of suit, taxed at 175 dollars 31 cents; that, on the 10th day of the same April, the plaintiff sued out execution upon the said judgment, returnable on the last Tuesday of October then next, which, being delivered to a deputy sheriff of the county, was, on the 29th of August, 1811, returned by the said deputy sheriff fully satisfied. To this plea the plaintiff demurred, *416and assigned for cause that “ it does nowhere appear, by said plea, that said *Cutler*paid, or caused to be satisfied, *the*sums aforesaid before the commencement of the plaintiff’s action; ” and the de fendant joined in demurrer.

*Dana,*for the plaintiff,

contended that the defendant was bound to pay the judgment immediately; whereas he did not [ * 420 ] * pay it until August, which was four months after the rendition of the judgment. This was not fulfilling the condition. Further, the plaintiff is in equity entitled to interest from the time of the judgment to the time of payment.

The plaintiff was entitled to his execution in October, 1809. If the defendant had then sued his review, instead of moving for a new trial, which was granted him only in consideration of this bond, he must have paid twelve per cent, interest on the judgment. He owed a duty to the plaintiff by force of this bond, and having neglected to perform it, the plaintiff is entitled to his action. As to the damages, which the plaintiff is entitled to recover, it will be seasonable to inquire of them when, the forfeiture being adjudged, the parties shall be heard in chancery. This is not a plea of payment after the day. The money the defendant has paid will be properly deducted upon the hearing in equity.

*Ward,*for the defendant.

The bond does not stipulate payment of interest in case of a new trial. The plaintiff, having sued out his execution, and compelled payment of it, has obtained all to which he had any claim in law or equity by virtue of this bond. It is true, this is not in form a plea of payment after the day, which might, however, have been well supported by the facts disclosed in the plea, a compulsory payment having the same effect, in this regard, as a voluntary one. (1) Having received the principal debt and costs, the plaintiff cannot now maintain an action for the interest. (2)

The defendant is no further liable on this bond than he was by the judgment and execution. Although, in an action upon the judgment, he might be holden to pay interest, yet, on execution, though never so long after judgment, no interest is demandable.

(1)

*Chitty on Pleading,*481.— *Cro. Car.*328.

(2)

 1 *Esp. Rep.*111, *Dixon vs. Parkes & Al.*— *Doug.*112, *Sullivan vs. Montague*3 *Burr.*1345, *Bird vs. Randall.*—7 *Mass. Rep.*334.

*Curia.*

The defendant has not alleged, in his plea in bar, that he paid the amount of the judgment recovered against him in satis-' faction of the bond; but that he paid it by compulsion [*421] upon the execution. This, the plaintiff says, * was no performance of the condition, and insists that payment should have been made before action brought, that the condition might be saved at law. And there would be great force in this *417point, if any thing remained due. The plaintiff says, indeed, that he is entitled, in equity, to recover in' this action interest on the judgment, from its rendition to its discharge. But the first inquiry is, whether, in this state of the pleadings, we can go into equitable considerations.

By the statute of 4 and 5 *Anne,*c. 16, if the obligor has paid before the action brought, though not at the day, he may plead it. This statute has always been practised upon here. If payment of the judgment in this case was a performance of the condition of the bond, then no cause of action remains upon the bond. There was no stipulation for the payment of interest in the case that hap pened, nor with regard to the time of payment. The judgment having been satisfied, nothing remains due on the bond, and the defendant’s plea is adjudged good.

*Costs for the defendant*

ADDITIONAL NOTE.

[In case of a bond to convey, release, or do any other act, at a certain day or on demand, unless performance at this particular time is of the essence of the contract; the penalty will be saved by performance after the day or on a second demand, accepted by the obligee as and for a performance of tiie condition. — *Hogins*vs. *Ar notd,*15 Pick. 259.

A bond being in suit, and the writ in the hands of the officer, but not served, the obligor went to the obligee’s attorney to make payment. The attorney cast the sum due, and endorsed a receipt upon the bond, which was delivered to or taken up by the obligor, who at the same time handed the money to the attorney. While counting it, the attorney discovered and remarked that the costs had been accidentally omitted, but the obligor refused to pay them, and went away with the bond, the attorney refusing to receive the money. Held, no discharge of the bond. — *Steward*vs. Riggs, 9 *Greenl.*51.

An execution debtor being within the prison limits under a statute bond, his friends entered into a collateral agreement to pay the debt 5 the creditor thereupon giving him an unsealed receipt, in full satisfaction of the judgment and execution. Held, the bond was discharged, though the creditor had been unable to derive any benefit from the agreement. — *Ellingwood*vs. *Dickey,*9 *Greenl.*125.

An official bond remains good for losses and defalcations to the amount of the penalty, though moneys to that amount have been faithfully accounted for. — *Potter*vs. *Titcomb, 7 Greenl.*302.

Satisfaction of a bond is presumed after twenty years. — *Bartlett*vs Bartlett, 9 N. *H.*398.

If the oblige»' is an infant" when the cause of action accrues, payment will be presumed in five years from his coming of age, if this makes up twenty years from the accruing of the cause of action. — *Ibid.*

After discharge of a bond by the principal, the obligee cannot set it up again, under a subsequent agreement with the principal, against the surety.— *Woodman*vs Mooring, 3 *Dev.*237.

See *Flower*vs. Marten, 2 *Myl. Cr. 459.—Field*vs. *Robins,*3 *Nev. P.*226. *Cass*vs. Adams, 3 *Ham.*223. — *Hudson*vs. Tenney, 6 N. *H.*456. — F. H.]