#### *W. H. B. Richardson vs. A. C. Richardson and James R. Spann et al.*

A party is only bound to pay interest on the condition of a bond, and that is only to be computed from the time of the order, fixing his liability on the bond.—

*Before*Johnston, Chancellor.

Charleston,

*June Term1*1840.

In June 1838, by an order of the Court of Equity made in this case, the master was, among other things, directed to state the accounts of the several devisees and legatees with one another and with the estate. Among the claims exhibited against J. R. Spann under the above order, were two bonds, one dated 21st June 1828 in the penalty of $20,000,' conditioned for the payment of $10,000, with interest ; the other dated 2nd August 1834 for $1500, with interest. In the report made by the master in June 1839, he stated the amount of principal and interest due on these two bonds up to the 1st June 1839. And in reference to the bond for $10,000, reported the amount of principal and interest to be $20,339,57, exceeding the penalty of the bond $339,57. By a further order of the court this report of the master, as far as it related to Spann’s debt, was referred back with instructions to allow the defendant Spann to show by any evidence in his power that the said bond of $10,000, ought not to be enforced, and that he was not liable to pay the same ; and that .in making up his account with defendant Spann he should credit him with his share of the estate, crops (fee. and charge him with his debt, and to report the state of the account. After, hearing the parties and the evidence submitted under this order, the master, in January 1840, made a supplementary report, in which he reported the defendant Spann as liable to pay the bond for $10,000, and again submitted his previous report of the 12th June 1839, on that subject. Exceptions were taken to that report, and on hearing the case, the report of the master was confirmed by his honor Chancellor Johnston.

In June 1840 the master made his final report, stating, among other things the executor’s áccount with the several distributees of the estate. In the statement of the account with the defendant Spann, the master, after charging Spann *104with the penalty of his bond of June 1828, to wit $20,000, charged him with interest on $10,000, the condition of the bond and beyond the penalty, from the 1st day of June 1839. To this exception was taken by the defendant Spann, on the ground that interest could not be charged beyond the penalty of the bond. The complainant also excepted to the master’s report, on the ground that he should have charged(interest on $21,499,91, from the 1st of June 1839, to the 1st of June 1840, instead of charging it on $11,499,91. His honor Chancellor Johnston over-ruled the defendant’s exceptions and sustained that of complainant. From this, an appeal was taken on the ground already stated, that interest should not be charged or allowed beyond the penalty of the bond, and that in making up his account the defendant cannot be charged with more than the penalty, to which Is to be applied the credits to which the defendant is entitled by the executor, and that he is liable only for the balance.

Rice,, for motion,

cited 1 M’ C. R. 503; 7 Ves. 411; 3 Br. C. €. 489; Chitty Digest, 194; S. P. C. 15.

Petigru, contra.

Report confirmed; interest on that decree.

Rice, in reply

This is not like an action upon the decree.

Gov. Richardson died 1836.

*Curia, per*Johnson, Ch.

The only question remaining in this case is raised by the defendant Spann. The bill was filed to settle the estate of the complainant’s testator, of which Spann was a devisee or distributee — The matters of account were referred to the master, and at June Term 1839 he reported that Spann was indebted on a bond given to the testator in his life time in the penalty of $20,000, conditioned for the payment of $10,000, the interest on which, computed up to that time, exceeded the penalty by $339,-37, but in stating the accounts he was charged only with the penalty. On the coming in of the Report an order was made at the instance of Spann that this matter should be referred back to the master, with instruction to permit him to offer evidence to shew that he was not liable to pay the bond, and that he should be allowed a credit for any sums *105he might be entitled to as legatee or distributee óf the estate ; and it was also ordered that unless Spann should prove before the master that he was not liable to pay the bond, the report should stand confirmed.

In June Term 1840, the master reported against the evidence offered by Spann to shew that he was not liable to pay the bond, and in restating the accounts he charged Spann with interest on $20,000, the penalty of the bond, from the date of the report at June term 1839, and that •report was confirmed ; and the appeal from th'at judgment involves the question whether the complainant is entitled to recover any interest beyond the penalty of the bond, and if any, whether on. the penalty or the condition.

Generally, the obligee is not entitled to interest beyond the penalty of the bond; the penalty is in the nature of liquidated damages, stipulated for by the parties as a forfeiture for not performing the condition ; and this is obviously the principle on which the report of June term 1839, was framed. According to the common law the execution could only issue forthe precise sum adjudged to bedue to theplain-tiff, however long the enforcement of it might be postponed, although in a new action he might recover the interest. The act of 1815 was intended to remedy this evil; it provides, “that in all judgments and decrees of the courtsof law and equity hereafter to be obtained and rendered on any judgment, bond, bill or promissory note, or other cause of action bearing interest, the principal sum of the judgment, bond” &c. “shall continue to bear the same interest as the original cause of action did bear before the entry of judgment thereon,” and that execution should issue therefor.

Now, the order of June term 1839, confirming the report of the master, by which Spann’s indebtedness was ascertained, is unmeaning and senseless unless it was the judgment of the court against him for the amount; and that is according to the universal practice of the court. That part of the order of confirmation by which Spann was tó bé let into proof to shew that he was not liable, did not super-cede or reverse it, but merely suspended it, as a favour tó him.

The complainant is therefore entitled to interest on the *106condition of the bond, only from the time of the order confirming the report of the master at June Term 1839, and it is hereby ordered and decreed, that the decree of the Circuit Court and the accounts be reformed accordingly.

DAVID JOHNSON.

We concur.

Wm. Harper, J. Johnston.

Duniiin, Chancellor, did not sign the opinion.

Rice, for the defendant Spann ; Petigru, contra..