Stewart against Martin, 2 Watts 200

The opinion of the Court was delivered by Sergeant, J. There was error in entering the judgment, for what is termed the penalty of the recognizance. The scire facias prayed an award of execution for the interest of the 582 dollars 8 cents, and the verdict and judgment could be properly rendered for money due on that account only. It is not like an action of debt for a penalty, with a condition to pay instalments, in which a cautionary judgment has been allowed to be entered to secure the payment of future instalments, and where no other action can be brought on the bond.

This scire facias is correctly drawn—demanding an award of execution of the amount due. And a judgment to that effect would be no bar to a future scire facias, in case the widow continued alive to collect subsequent arrears. This error, however, is in the entry of an improper judgment on the verdict. The verdict is informal, but it is substantially a verdict for the 963 dollars 75 cents, and costs of suit.

It finds that sum is due, but there is added a finding for the plaintiff of 1165 dollars 6 cents, which may be rejected as surplusage, and judgment rendered for what is proper on the pleadings and evidence of the cause. In the case of Easton v.

Worthington, 5 Serg. & Rawle 130, in replevin, where the goods were delivered to the plaintiff, and the defendant pleaded property, and it was found for him, and the jury, under the charge of the court, found a verdict for the value of the property, and judgment was rendered thereon; it was held to be erroneous, because the jury ought to have found a general verdict for the defendant, and damages for the detention, on which finding the proper judgment was pro retorno habendo, and for the damages.

This court, on error brought, reversed the judgment entered, but gave a correct judgment, according to the justice of the case—holding it to be the duty of the court to put the verdict into form, by adopting the substantial part, and rejecting the rest as surplusage. Mr Justice Duncan, in Easton v. Worthington, says: “ that which is more is surplusage, and shall not stay the judgment; for utile per inutile non vitiatur. It is sufficient if the matter and substance be found. Co. Lit. 227.

For though the finding is not in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it serve, according to the justice of the case. Hob. 54; 2 Burr. 693; 10 Mass. 64.” Agreeably to these settled principles, the judgment below will be reversed, but the proper judgment will be rendered here on the verdict for the plaintiff. There was no error in rejecting the evidence offered by the defendant of payment of the money due to the commonwealth for patenting the land subsequently to the recognizance.

In the case of ordinary sales of land, the vendor has been charged with the patenting money, where he had given a general warranty and sued upon the bonds for the purchase money; M’Kennan v. Doughman, Penns. Rep. 417; or on articles of agreement to convey a good and lawful title. Romig v. Romig, 2 Rawle 241. But when land is accepted at-an appraisement, and the widow’s share ascertained and secured, it is too late afterwards to claim this deduction. The maxim caveat emptor applies.

The patenting money may have been considered by the inquest in their appraisement; if that was not the case, the defendant would have attended to it when the recognizance was given. The principal question in the case is, whether the plaintiff was entitled to interest on the annual sums due by the defendant in arrear.

We have had occasion already, at this term, to consider the peculiar character of the widow’s right to annual payments of money in lieu of dower, and to observe that it partakes of the various features of an annuity, of interest on money, and of a rent charge, without being susceptible of a distinct classification with either. Being given in lieu of land which yields annual profits, and for her maintenance, it ought, in justice and equity, to be punctually paid when due, and if withheld, she is entitled to interest as a compensation for the loss sustained by the delay.

The law looks with a favourable eye on provision for a widow. In The Drapers’ Company v. Davis, 2 Atk. 211, an annuity given by will was in arrears ; the Lord Chancellor said: there is no certain rule of the court for giving interest for arrears of an annuity. The first instance of its being done in this court, was in the case of Ferrers v. Ferrers; Cas. temp. Talbot; but it has been done in many instances since, and/or the most part, when it was the bread of the wife or child. In Newman v. Awling, 3 Atk. 579, the same thing was done, because it was given by way of maintenance, and was charged on real estate.

In Robinson v. Cumming, 2 Atk. 211, the reason given was because it was her jointure, and interest upon the arrears of the annuity was allowed her by way of maintenance, and as a compensation for the debts she had contracted in the mean time. In Litton v. Litton, 1 P. Wms 543, interest allowed from the very day they became due, and said it was the widow’s bread. See also, Irby v. M’Crae, 4 Dess. 422. In covenant brought to recover a sum certain due for rent, and payable in money, the plaintiff is entitled to recover interest. Clark v. Barlow, 4 Johns. 183. The same principle is held in Obemeyer v.

Nicholls, 6 Binn. 159 ; and Albright v. Pickle, 4 Yeates 364; unless under particular circumstances. Interest is sometimes allowed on interest when the latter is specifically contracted to be paid at certain times. 1 Vern. 194; Cam. & Norwood 357. On a note payable in eight years, with interest payable annually, interest was allowed on each year’s interest unpaid. Greenleaf v. Kellogg, 2 Mass. Rep. 568. The payment is of a fixed sum, at certain periods, given to the widow in lieu of dower for her maintenance and support, charged on lands and secured by recognizance.

This would seem to combine nearly every principle on which courts have awarded interest a.s a compensation for delay of payment. The general rule, therefore, is to allow it. At the same time there may be exceptions. Cases may occur where, from the land’s continuing in the hands of children, and some other circumstances, the presumption may be raised that the widow did not intend to charge it, and in that case it should not be allowed. Judgment reversed, and judgment for the plaintiff below on the sum of 963 dollars 75 cents, with interest from the 23d of November 1832, and costs of suit.