Howard v. Farley , 29 How. Pr. 4 ( 1865 )

Monell, J.

The defendants’ offer was to allow judgment to be entered for the whole sum secured by the bond, and if the plaintiff failed to obtain a more fávorable judgment, he cannot recover costs, but must pay costs to the defendants from the time of the offer. The demand of judgment for the penalty of the bond was through an error of the plaintiff’s counsel in supposing that the old action of debt on bond was not abolished by the Code. The plaintiff did not claim to collect the penalty, but claimed that the judg-' ment should be in form for the penalty as in the old action of debt. In that case execution could issue to collect such sum only as was due by the condition of the bond—in this case six months’ interest. The principal sum secured by the bond in suit will not become due until the 21st of May, 1865, and the plaintiff is not obliged, nor can she be compelled to receive it before maturity. The bond is presumed to be well secured by a mortgage on real property. The acceptance of the offer to allow judgment would have required a judgment for the amount stated in the offer, and it could not have been for any less sum. The judgment being entered, the defendants could pay the amount and thus satisfy the bond, and claim a discharge of the mortgage. Such a judgment cannot be said to be more favorable than such as the plaintiff has obtained. It would ■compel the plaintiff to receive the principal before due, and deprive her of a good investment of her money. The amount of the judgment is not the only test. Capitalists, whose means are invested in bond and mortgage, are usually reluctant to receive the principal ■ until due. There, is a liability to lose interest, and another investment must be found.

Under these circumstances, I think the judgment the plaintiff obtained was more “ favorable ” than the offer, and, consequently, she is entitled to recover the costs of the action.