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U.S. Supreme Court

Ives v. Merchants' Bank of Boston, 53 U.S. 12 How. 159 159 (1851)

Ives v. Merchants' Bank of Boston

53 U.S. (12 How.) 159


The surety for the appellants from a decree in admiralty gave bond to pay all costs and damages which might be adjudged by this Court.

This Court having affirmed the decree of the circuit court with costs and six percent damages, judgment was entered upon the receipt of the mandate by the circuit court for the amount of the original judgment together with the amount of costs and damages calculated up to that day, and execution was awarded.

Under this execution, the vessel, which had been attached under the libel, was sold for less than this aggregate amount.

The surety is not entitled to have a relative proportion of the proceeds of sale applied to the reduction of his bond, but is responsible upon it to the entire amount.

By the 26th section of the Judiciary Act, the courts have power to assess damages upon bonds &c., and to render judgment for so much as is due according to equity, in cases of default or confession or demurrer. This section does not apply to a case heard on agreed facts.

But then when the case heard on agreed facts was the case of an appeal bond, it was proper for the court to give judgment for the penalty of the bond (being less than the judgment under the mandate) and allow interest from the date of the institution of the suit, although the amount to be paid in this way would exceed the penalty of the bond. chanroblesvirtualawlibrary

Page 53 U. S. 160

This case was a consequence of the case of New Jersey Steam Navigation Company v. Merchants' Bank of Boston, 6 How. 344.

The Merchants' Bank of Boston was the plaintiffs in the circuit court, and the cause of action is thus stated in the brief of the counsel for the plaintiff in error in this Court. There was a special declaration in the circuit court, to which the defendant demurred:

The facts set forth in the declaration and admitted by the demurrer, upon which the questions here presented arise, are shortly these:

The suit in admiralty -- New Jersey Steam Navigation Company, Appellant and Libellee v. Merchants' Bank of Boston, Libellant and Appellee, lately decided by the Supreme Court of the United States and commonly called the Lexington Case, was commenced in the District Court of the District of Rhode Island by attachment of the steamer Massachusetts, then belonging to the Navigation Company. The suit coming by appeal to the Circuit Court of the United States for the District of Rhode Island, a decree therein was rendered against the Navigation Company at the November Term 1843, whereupon an appeal was taken by the company to the Supreme Court of the United States, and Moses B. Ives, the plaintiff in error, entered into appeal bond as surety for the company, of which he was a member, in the penal sum of $2,500, with the following condition:

"Now therefore if the said New Jersey Steam Navigation Company shall prosecute their said appeal before the said Supreme Court of the United States with effect and shall well and truly pay all such costs and damages as shall be adjudged for them to pay by said Supreme Court or by said circuit court by reason of said appeal, then the before-written obligation to be void and of no effect, otherwise it shall remain in full force and effect."

The suit terminated in the Supreme Court in a decree in favor of the libellant and appellee, and execution finally issued against the Navigation Company for the sum of $28,302.26 debt, and costs taxed at $680.50, which, together with the sum of 75 cents for the execution, made the whole amount of the execution $28,983.51, the debt drawing interest from 19 June, 1848.

Of the debt, so called, embraced in the above execution the sum of $6,228.78, consisted of the costs and damages of the chanroblesvirtualawlibrary

Page 53 U. S. 161

appeal decreed by the Supreme Court -- that is to say, $6,078.26 of it was interest on the amount decreed accruing during the pendency of the appeal, given by way of damages of the appeal, and the balance, $150.52, were the costs of the appeal. This sum, $6,228.78, drawing interest from 19 June, 1848, is the sum for which Mr. Ives would have been liable, to the extent of the penalty of the appeal bond, had the execution remained wholly unsatisfied. But the above execution was levied by the marshal upon the steamer Massachusetts, attached as aforesaid on the original process in the suit, and on 26 July, 1848, the Massachusetts was sold by the marshal under the levy for the sum of $25,000, and, deducting therefrom the sum of $883.38, the marshal's fees and expenses, the sum of $24,116.62 was paid over by the marshal to the Merchants' Bank, and the execution thereupon returned satisfied for that amount, and unsatisfied for the balance -- that is to say between four and five thousand dollars of the execution remained unpaid.

The present action is an action by the Merchants' Bank against Mr. Ives, the surety on the above appeal bond, to recover the costs and damages of appeal, and the plaintiff and defendant in error claimed below that he was entitled to apply the $24,116.62, not proceeds of the Massachusetts, first to that portion of his execution not protected by the appeal bond, and was compelled to apply the balance only to that portion of the execution protected by the appeal bond, treating the sum made upon the execution in the same manner as if it had been a voluntary payment without direction by the payor, in which case the right of appropriation remains with the payee. To this result the learned judge who tried the case below for various reasons came, and rendered judgment against Mr. Ives for the penalty of the bond with interest from the day of demand by action brought. chanroblesvirtualawlibrary

Page 53 U. S. 163

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