Overall v. Babson ( 1821 )

Opinion of the court delivered by

Judge Haywood.

This is an action of debt upon bond, in the penalty of $1280, to make title to a tract of land. The breach assigned is in not making the title. Upon the plea of conditions performed, the jury found for the plaintiff, and assessed damages to 1703 dollars. Judgment for the penalty, and an appeal to this court; and the question now is, whether the judgment must be for the penalty, or whether it may not be for the damages assessed. The act of 1801, ch. 6. sec. 66, provides for cases where the damages assessed are for less than the penalty, that the judgment shall be for the penalty, dischargeable by the damages and costs. The case of damages beyond the penalty seems not to be embraced in the act, but left as before to the common law, and what that is appears to be settled, 6 Term, 303. 1 East, 436, namely, that the pe-alty cannot be exceeded. Judgment affirmed.