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Klock v. Robinson.

to our judicial practice. He says, in Stafford v. Mott, 3 Paige, 100, "strictly speaking, the amount due on a judgment in tort is the sum for which the judgment is entered, although a court or jury, in an action of debt thereon, may give interest, by way of damages for the detention of the debt." In Watson v. Fuller, 6 Johns. R. 284, it is conceded that you may bring a fresh action for interest on a judgment. Per Kent, Ch. J. citing Lord Loughborough. In Winslow v. Assignees of Ancrum, M' Cord's Ch. R. 104, Johnson, J. said: "As a general proposition there can be no question, that, in an action at law founded on a judgment, the plaintiff would be entitled to recover interest on the amount of the judgment." In Prince v. Lamb, Breese's R. 299, Smith, J. said: "The judgment is a debt; and may be assimilated to a contract to pay a certain sum with interest. Such interest is recoverable as a part of the contract, in the present case, by way of damages for the detention of the debt, the interest being a part of the judgment." In Sayre v. Austin, 3 Wendell, 497, Sutherland, J. said, that a judgment is the highest evidence of a debt known to the law. "It certainly savours somewhat of extravagance, to maintain that the judgment is not a debt due in every possible sense of the term. It is a debt due, with the interest from the time of its rendition." In Gwinn v. Whittaker's adm'x. 1 Har. & John. 755, Chase, Ch. J. stated it to be established in Maryland, that " every judgment for money will carry interest from the obtention of it, unless by the terms consented to by the parties, or the nature of the judgment, interest is not demandable, or only so in a particular way."

All these things may be truly said, irrespective of the nature of the original cause of action, and most of them seem to have been so said. They apply as well to judgments for wrongs as on contracts; on contracts which do not carry interest, as well as on those that do; and why not with good reason? The allowance of interest in this state is founded much on the idea of a previous liquidation of the claim upon which it is demanded; a judgment is the surest means of liquidation, and in good sense, I have yet to learn, VOL. XXII.

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Klock v. Robinson.

why should it be esteemed unjust to allow interest on a sum thus apparently due for a positive, perhaps a very gross injury, while the contrary is clearly holden of a mere nonfeasance, the non-payment of a debt due.

I do not consider Crewze v. Hunter, 2 Ves. jun. 157, an authority against the plaintiff. On the contrary, several expressions of Lord Lougborough, in the course of the cause, which he appears to have considered with great attention, may be taken as a concession, that interest was recoverable in an action on a judgment generally. I confess, however, that I have been equally unfortunate with the counsel, in my endeavor to extract any certain guide from positive authority. In England the cases are conflicting, though, I am inclined to think the balance of opinion to be, that interest is not allowable in an action on a judgment, unless the original demand carried interest. Butler v. Stoveld, 8 Moore, 412. I do not go over their cases. Thomas v. Edwards is a specimen of the English authorities. It occurs twice. In 2 Anst. 558, 35 Geo. 3, the court denied that the plaintiff could have interest; but when he came to his final judgment, some two years after, they allowed it, though the original judgment was said to be nearly all for costs. 3 id. 804. What the residue was for, neither the counsel nor court deemed it material to inquire, so far as we can see from the report. Another instance: In Atkinson v. Lord Braybrooke, 4 Camp. 380, Lord Ellenborough said a foreign judgment (in Jamaica) constituted only a simple contract debt; and therefore did not carry interest; while in respect to another Jamaica judgment, Graham, Baron, said, had the plaintiff brought assumpsit, he might have recovered interest by way of damages. Doran v. O'Reilly, 3 Price, 250. It appeared by the affidavits read in the cause, that interest had, in fact, been recovered in the king's bench in an action of debt. As late as 1823, we find the justices of the common pleas doubting whether interest might not be allowed even where the original demand did not carry interest. Butler v. Stoveld ut supra. Several of the neighboring states have I perceive very wisely settled the question by statute; while Kentucky

Hoag v. McGinnis.

seems at one time to have denied interest on judgments altogether. Heydle v. Hazlehurst, 4 Bibb, 19, (Court of appeals.) Afterwards, however, the court went to the opposite and more reasonable extreme. They said the jury might allow interest by way of damages, in debt on a judgment for damages. Smith's adm'r v. Todd's ex'r., 3 J. J. Marsh, 306; and see per Ewing, J. in Shockey's adm's. v. Glasford, 6 Dana, 16, 17.

We think the latter principle the more reasonable. A new trial is, therefore, denied.

New trial denied.

HOAG vs. MCGINNIS.

Where parties entered into a submission to arbitration, and bound them. selves in a penalty of a specified sum as stipulated damages, to be paid by the party faling in performance; and the submission contained a stipu lation that one of the parties should give notice of five days to the other of the time of the meeting of the arbitrators, it was held, in an action brought on the submission, assigning as a breach the omission to give such notice, that the liquidated damages could not be recovered for such omission, and if the party was liable for the payment of such damages, they could be enforced only for not performing the award when made. It seems, however, that even in the case of the non-performance of the award, the sum specified in the submission would be considered only as a penalty, and not as liquidated damages; that in such cases the specified sum will not be held as liquidated damages, except where it is manifest the parties so intended, and where it is difficult if not impossible from the circumstances of the case for a jury to arrive at a satisfactory conclusion as to the amount of damages to be allowed.

DEMURRER to declaration. The plaintiff declared in debt for a penalty as stipulated damages, on the following agreement: “Whereas, unfortunately, a difficulty has heretofore existed between Jacob McGinnis, of, &c. and Harvey Hoag, of, &c. of and concerning sundry deal and traffic, &c. now, therefore, to put an end to all dispute, &c. it is hereby reciprocally agreed by and between the said parties, that all their difficulties shall be submitted to the arbitrament of D. J. H. and E. S., both of, &c. to be submitted as follows, viz: each of said parties to appear before the

Hoag v. McGinnis.

said arbitrators, any time hereafter, so as the said award be made in writing, under their hands and seals, on or before the first day of June next, &c. said arbitrators to meet at, &c. The parties are to appear before the said arbitrators, each to tell their own stories on honor, and to have no other witnesses, and from their stories the said arbitrators are to make their award, if they can. And if they cannot agree on their said award, then, and in that case, said arbitrators are to agree on a third person, and the award of any two of them is to be final between the parties, under the penalty of one hundred dollars, to be paid by the defaulting party to the one abiding thereto, this being the stipulated damages agreed upon by and between the said parties. It is also stipulated, that the said McGinnis shall give said Hoag five days notice of the time for said arbitration. In case of sickness of the said parties, whereby the said agreement shall fail, then and in that case, there shall be no penalty attach. In witness, &c. this 5th day of March, 1836." [Signed and sealed by the parties.] The breach alleged was, that McGinnis did not give to him the said Hoag, five days notice of the time for said arbitration, as conditioned in the said writing obligatory, or any other notice whatsoever; but wholly neglected and refused so to do, contrary to the tenor and effect of the said writing obligatory; by occasion whereof the said plaintiff hath been greatly damaged, in not receiving his just demands, arising out of their difficulties aforesaid, viz: the sum of one hundred dollars, of and from the said defendant, and hath been put to great trouble and expense in being kept out of the same, and their accounts and matters otherwise being unsettled." By means, &c. whereby an action hath accrued, &c. to demand the sum of one hundred dollars, &c. Demurrer and joinder.

Adams & Watson, for the defendant.

J. D. Jordan, for the plaintiff.

Hoag v. McGinnis.

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By the Court, COWEN, J. The plaintiff's pleader supposes that the liquidated damages were intended, among other things, as a compensation for not giving notice of the hearing. I think not. The language of the parties is shortly this: "The award is to be final between the parties, under penalty of $100, to be paid by the defaulting party to the one abiding thereto," (i. e. the award.) The parties, not being lawyers, supposed that even after the award, one might, as the vulgar phrase is, "fly" or "back out," and the penalty was hung up in terrorem to prevent such a consequence. It is, after all, but the usual penalty for not performing an award. Suppose that had been for the payment of money, only six cents, to the plaintiff, ought he to have the "due and forfet of his bond?" So, if the defendant had revoked the authority to award, on being convinced that his judges were not indifferent. After all the substantial provisions and this penalty for not abiding the award, comes the collateral provisions regulating the practice between the parties. To this the penalty cannot be made applicable without straining and forcing the apparent meaning of the parties beyond all precedent. It is supposed that the defendant, by omitting the notice, defeated the arbitration. Not so. It is of the nature of such a proceeding, that either party may give notice, and convene the arbitrators. Watson on Arb. and Awards, 73. A stipulation by one party to give so many days' notice, does not curtail the power of the other to proceed in the usual way. The agreement might fail by reason of sickness, or in various ways, beside ommitting the notice.

But it would be a sufficient argument for withholding the penalty, if the question were equal whether the parties intended the payment of $100 for not giving the notice, or did not so intend. I do not think that penalties like this (for they are seldom any thing other than penalties,) should be favored. I yielded my assent to the opinion in Dakin v. Williams, 17 Wendell, 447, for the reason which there governed the chief justice, viz: because, on the whole contract, we could not doubt the parties intended that the damages should be paid for violating the stipulation in question,

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