59 N.H. 561 | N.H. | 1880
In actions for the recovery of any penalty or forfeiture in any obligation or contract under seal, the court shall render judgment for such amount as is equitably due, or as will indemnify the plaintiff for the damages sustained by the breach of the condition. G.L., c. 232, s. 9. By the provincial law, where the forfeiture or penalty of any obligation, with a condition underwritten, was found by verdict of jury, or by default or confession, the justices of the court were authorized to moderate the rigor of the law, and on consideration of such cases according to equity and good conscience to chancer such forfeiture, to enter up judgment for the just debt and damages, and to award execution accordingly Act of 1699, Laws, ed. 1771, p. 7, s. 8; 3 Prov. Papers 86, 218. In the ante-constitutional practice the forfeiture was chancered by the court, and the amount equitably due may now be determined by a referee. In this case the referee may be directed to report the amount legally due, the amount equitably due, and all facts that may be proved bearing on the questions of legal and equitable indebtedness. The materiality and effect of any special facts found by the referee can be considered hereafter.
Case discharged.
FOSTER, J., did not sit: the others concurred.
