Daniel V. Ahl vs. Quitman P. Ahl.
Bond with a penalty — Dormer recovery — Subsequent breach, of condition of Bond.
Where in an action on a bond with a penalty, conditioned for the payment of a specified sum in five annual instalments, with interest, a judgment is confessed for the amount of the four first instalments then due, with interest to a certain day, such judgment constitutes no bar to another action on the bond for the subsequent breach which consisted in the failure to pay the last instalment -with interest.
Appeal from the Circuit Court tor Washington County.
A bond was executed by the appellant on the 31st of March, 1873, to John A. Ahl in the penalty of $37,000, conditioned for the payment of $18,500, in five annual instalments, the whole amount to bear interest from the 1st of April, 1873. John A. Ahl assigned the bond to the appellee on the 8th of March, 1877. On the 22nd of April, 1877, the appellant confessed judgment on the bond in favor of the appellbe, for $19,400, being the amount of the four first instalments then due, with interest to the 1st. of April, 1877. This suit was brought by the appellee on the bond to recover the sum of ,$3500 the amount of the last instalment, with interest, which instalment was not due at the time the appellant confessed judgriient for the *208four first instalments. The declaration set forth the hond, and claimed the penalty as damages. The defendant filed five pleas; the first of which was former recovery, and the second, extinguishment and merger. To these pleas the plaintiff replied that the breach of the bond sued for in this action, had not occurred at the time the former judgment was rendered, &c. The defendant demurred to the replication. The demurrer was overruled, and the case being submitted to the Court, judgment was rendered for the plaintiff for the penalty in the bond, to be released on payment of $4526.61, with interest thereon till paid, and costs. The defendant appealed.
The cause was argued before Miller, Yellott, Robinson, Irving, and Ritchie, J.
Louis E. McComas, for the appellant.
George W. Smith, for the appellee.
Miller, J.,
delivered the opinion of the Court.
The decision in Orendorff vs. Utz, 48 Md., 298, is decisive in favor of the ruling to which exception was taken in this case. The Court there determined that whilst the Statute of 8 & 9 Will. III, ch. 11, sec. 8, may authorize the entry of a judgment for the penalty of the bond, to stand as security for subsequent breaches, which may be recovered by scire facias thereon, it does not, when taken in connection with the provisions of the Code, Art. 15, sec. 63, prevent repeated actions on the bond as breaches thereof may occur.
. The bond sued on in the present case is in the penal sum of $31,000, conditioned for the payment of $18,500, in five annual instalments bearing interest, and commencing to fall due on the 1st of April, 1814. The last amounting to $3500 with interest, became due and paya*209ble on tlie 1st of April, 1878, and tlie breach relied on was non-payment of this last instalment. The only defence which this appeal presents to our notice, was recovery by the plaintiff in a former action on the same bond, of the sum of 819,140. This former' suit was instituted in February, 1877, and it was agreed that a judgment should he entered in that suit for the sum of 019,440, “being 015,000 of the principal then due, and 04440 interest due to April 1st, 1877.” • A judgment was accordingly entered, not for the penalty of the bond, hut for the sum of 019,440 as agreed upon by the parties. When this suit was brought the last instalment was not due, and it is manifest this instalment was not embraced in that judgment. The former recovery was only for the instalments with interest then due, and this, according to the decision referred to, constituted no bar to another action on the bond for tlie subsequently accruing breach, which consisted in the failure to pay this last instalment with interest.
(Decided 4th May, 1883.)
Judgment affirmed.