Upon a bond given to the county treasurer by the clerk of General Sessions, con ditioned for the payment of all moneys received by the obligor for licenses to innholders, the treasurer had received, after very great delays, all the sums which the clerk had received, and afterwards commenced an action upon the bond for the interest It was holden, that the principal having been paid and accepted, and interest not being specially secured by the condition, the penalty of the bond was saved.
This was an action of debt brought by the plaintiff, as treasurer of the county of Kennebeck against Gannett, as clerk of the Court of Sessions for the same county, and the other defendants as his sureties, upon a bond prescribed by the statute of 1795, c. 80, $ 2, dated July 18, 1799, conditioned that the said Gannett should account for on oath, and pay to the treasurer of said [ * 218 ] county, from time to time, the * sum of four dollars for each person who should be licensed to be an innholder in the county, within one month after he, the said clerk, should receive the same.
It was agreed, in this case, that the defendants duly executed the bond declared on ; that Gannett was appointed clerk of the Sessions at the term next preceding the execution of the bond, and continued in the office until December term, 1807; that, during that time, six hundred and forty-nine licenses to innholders were granted; that G. duly paid to the county treasurer, from time to time, within a month after each term, four dollars for each of four hundred and thirty of said licenses, leaving two hundred and nineteen not so paid ; that afterwards, in the month of May, 1810, and before the commencement of this action, he paid to the plaintiff four dollars for each of said two hundred and nineteen licenses, which was then received and credited by the plaintiff as treasurer, and included all the licenses for which the said G. was then accountable; that no interest was paid or demanded at the time, for the long delay of payment of the principal, sums due; nor was there any agreement or understanding, on the part of the plaintiff, to waive the claim for interest.
If, upon these facts, the Court should be of opinion that at the time of the commencement of this action the said bond was by law forfeited, and the forfeiture not waived, and that the plaintiff was entitled to judgment for the penalty, the defendants agreed to be defaulted, and prayed to be heard in chancery; otherwise the plaintiff agreed to become nonsuit.
*203 Bond for the plaintiff.
Allen for the defendants.
Had the condition of this bond been for the payment of interest after the months had expired, the penalty would have been forfeited, notwithstanding the plaintiff’s acceptance of the principal. But here it is but an incident in the nature of damages ; and the principal having been paid and accepted, the penalty is saved, (a)
Plaintiff nonsuit.
10 Tyng 217
11 Mass. 217
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