Woods v. Commonwealth

47 Ky. 112 | Ky. Ct. App. | 1847

Judge Beeck

delivered the opinion of the Couit.

This was an action of debt in the name of the Commonwealth, for the use of Pennington’s heirs, upon a guardian’s bond, against the guardian and his surety, alledging as a breach of the condition the failure of the guardian to account for and pay over money which he had collected, belonging to his wards. The penalty of the bond is $600, and the damages laid in the declaration the same amount. The jury found for the plaintiff the debt in the declaration mentioned, to be discharged by the payment of '$812 03 in damages, and judgment having been rendered accordingly, the defendants have appealed to this Court.

■ Whether the penalty of the bond limited the extent of the plaintiff’s right to recover, is the only question which we deem necessary particularly to notice.

In an action of debt upon a penal bond, the plaintiff sues for the penalty, which he claims a right to recover by the failure of the defendant to perform the condition. The measure of his damages for the failure, he makes the penalty of the bond, and cannot, in our opinion, recover beyond it. If in this case then, the plaintiff is entitled, as the maximum to $600, it is absurd to say that that sum can only be discharged by the payment >of $812. We are aware of no authority and recognize no principle upon which the judgment can be sustained. The Court below, therefore, erred in not instructing the jury that they were not authorized to find exceeding $600 in damages. The judgment is also erroneous.

Dunlap and Kincaid for plain tiffs; Turner and McKee for defendants.

In regard to other objections made to the proceedings, it need only be remarked that they are not deemed available.

The judgment is reversed and the cause remanded, with directions to grant a new trial without the payment of costs, unless the plaintiff shall release so much of the judgment as exceeds $600, with interest upon that amount from its rendition.