Opinion
11-06-1905
MOORE v. DURNAN et al.
William J. Backes, for complainant. Martin P. Devlin, for defendants.
Bill by Charles P. Moore against Charles B. Durnan and others. On motion to set aside an execution. Granted.
William J. Backes, for complainant. Martin P. Devlin, for defendants.
MAGIE, Ch. The bill in this cause was for the enforcement of a lost check for $450. On March 8, 1902, a decree directed that, upon complainants tendering to the two defendants a bond for $500, with sureties, etc., to indemnify defendants against any liability upon the check, defendants should pay to complainant $450 and the taxed costs, and, in default of payment, that the complainant should have execution for said debt and costs. On ——, 1905, complainant issued execution in the cause for $450, with interest thereon calculated from the date of the decree. A motion is now pending to set aside the execution; the defendants claiming that it is excessive in including interest to a greater amount than the decree justifies.
It is conceded that no bond, with securities, for indemnifying the defendants, was tendered until September 25, 1905. Defendants insist that no interest can be exacted from them, except from that date. If the decree had required an immediate payment of the amount, it would doubtless have had the effect of a judgment at law, and carried interest thereon from its date. Section 44, Chancery Act 1902 (Laws 1902, p. 524); Wilson v. Marsh, 13 N. J. Eq. 289. But the decree required payment, not immediately, but only after the tender of security to indemnify; and, until that had been done, defendant could not be compelled to pay. Considering that indemnity was deemed necessary, it may be said that they could not safely pay. It follows, in my judgment, that the decree did not justify the execution for interest, except for so much as accrued after the tender of the required indemnity. I have not been referred to any authorities on this subject, and I have found no case myself, except Bushnan v. Morgan, 5 Simmons, 635, which seems in point, though the English decisions of that period on the subject of interest sustain doctrines which are not now admitted.
Among the papers submitted on this motion is a bond, which I presume was that which was tendered. If so, it does not conform to the terms of the decree, for it is given to only one of the defendants.
Upon the ground first mentioned, however, viz., that the execution is for an excessive amount, I think the motion must prevail.