Wells v. Feeter
New York Supreme Court
The defendants were sued on a bond to stay a justice’s judgment for $28,09. Ttie penally was $60, conditioned to pay the amount, of the justice’s judgment. On the 23d July an action of debt was commenced in this court, on the bond, by the filing and service of a declaration. On the 16th August the defendants tendered to the plaintiff’s attorney the sum of $28,96, being the amount due the plaintiff according to the condition of the bond.
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The defendants were sued on a bond to stay a justice’s judgment for $28,09. Ttie penally was $60, conditioned to pay the amount, of the justice’s judgment. On the 23d July an action of debt was commenced in this court, on the bond, by the filing and service of a declaration. On the 16th August the defendants tendered to the plaintiff’s attorney the sum of $28,96, being the amount due the plaintiff according to the condition of the bond. The attorney refused to receive the money unless the costs of this suit were paid. The defendants then applied to this court for a rule that the clerk compute…
1Opinion of the Court
By the Court,
Marcy, J.
Had the suit in this case progressed to judgment by default, the plaintiff would have been *134entitled to judgment for the penalty, and that exceeding $50, he would of course have recovered costs. So he would have been entitled to a like judgment and recovered costs, had the defendants pleaded and failed in shewing payment of the bond or of a part thereof; but had they proved payment of ever so inconsiderable a sum, the plaintiff would not have been entitled to costs, but would have been liable to pay costs; for, in such case the amount actually due is the test by which the…
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