WELCH & Co. THORN ET AL. WESTERN DIST. We have been referred, by defendant's counsel, to several October, 1840. decisions of this court, as analogous to the present case; but on a careful examination of all said decisions, we cannot say that any of them may be considered as applicable to the point in controversy. In the case reported, 2 Idem., 498, it was a sale of a plantation, bounded on both sides by adjoining described tenements. In 3 Idem., 90, the tract sold was bounded, above and below, by lands of other persons. In 4 Idem., 534, the land purchased was stated in the sale to be adjoining lands of P. L. on one side, and those of W. on the other. In 5 Idem., 239, it was a tract of ten arpents front, by the depth of seven, with certain fixed boundaries established by tracts of other persons. In 7 Idem., 455, the property sold had known definite boundaries which the court considered sufficient to control the enumeration of quantity; and in 14 Idem., 497, several lots were sold with reference to a plan, and boundaries of the streets by which they were surrounded, and such reference was also deemed sufficient to control the measurment of the lot. With this view of the question, we think the district judge did not err in giving judgment in favor of the plaintiff. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. WELCH & CO., vs. THORN ET AL. APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF The effect of bonds and the rights of the parties to them, which are required by law to be given in judicial proceedings, are to be tested by the law directing them to be taken. In legal proceedings the penalty of the bond is fixed by the law, or the court, and the law points out the object for which it is given, In this state there being no distinction in the proceedings between the law WESTERN Dist. and equity jurisdiction of our courts, the penalty of a judicial bond is October, 1840. disregarded, and judgment given for the damages which the party has really sustained. So, where a penal bond was given by a defendant, on removing a suit from the state court, to the United States District Court, that he was to appear and put in special bail, and he failed to put in bail, upon which the plaintiff dismissed his suit and brought his action on the bond: Held, that he could not recover, because he had not proceeded to judgment in his suit, and did not show that he had sustained any damages. This is an action on a penal bond against the principal and sureties therein, given according to law, on the defendant Thorn's removing a suit, instituted by the present plaintiffs against him in the District Court of the parish of Rapides, to the United States District Court, holden at Opelousas, on the ground that he was a citizen of Texas. The penalty of the bond is twelve thousand and five hundred dollars, conditioned that if the said "Thorn shall file in the United States Court at Opelousas, copies of the proceedings in the above case of Michael Welch & Co., against him, on or before the first day of the next session of said court, and there enter special bail, the above obligation to be void; otherwise to remain in force.” At the next term of the United States Court, holden at Opelousas, in March, 1838, the defendant Thorn, not having entered bail, as by law and the condition of his bond he was required to do, the plaintiff's counsel had the suit dismissed after issue joined by the defendant, at the costs of the latter, who made no objection. The plaintiffs then commenced their action on the bond. The defendants pleaded that the suit was premature. That in law the original suit is still pending, and that they cannot be liable until the plaintiffs demand has been liquidated in damages; and that they have not been put in morâ. They pray for judgment in their behalf. The original suit against the defendant Thorn, is for damages for the non-performance of a contract. The plain WELCH & Co. VS. THORN ET AL. WESTERN DIST. tiffs claim ten thousand dollars in damages, on his failure to October, 1840. secure payment and take an invoice of goods according to WELCH & CO. VS. THORN ET AL. contract. There was judgment for defendants, and the plaintiffs appealed. Dunbar and Elgee, for the plaintiffs, contended that there should have been a recovery for the amount of the bond sued on; that it was a conditional obligation, and not an obligation with a penal clause. That the nature, validity and interpretation of contracts, are to be governed by the laws of the country where the contracts are made. United States vs. Donally, 8 Peters, 361. That by this test the bond sued on was clearly conditional; Louisiana Code, article 2117-18. To make it an obligation with a penal clause, there should now exist two principal obligations, either of which might be enforced by the plaintiffs. But that it could not be pretended, in the present instance, that this could be done. 3 Toullier, No. 799 to 808, inclusive. Des obligations aux clause pénales, section 6. 2. That this bond was not similar in its conditions to the ordinary bail bond, under our Code of Practice. See Code of Practice, articles 219, 230 to 237, inclusive, and Gordon's Digest, section 528. 3. The act of congress required surety to be given for the removal of a cause from a state court to the United States Court, and that sureties to be responsible for the filing of process and entering of special bail in the United States Court, at its next term. But no security had been given to answer such judgment as might be rendered in this cause. The bail bond given in the state court, is declared void by the act of congress; there was then no good reason why the plaintiffs should have been compelled to proceed in the United States Court to judgment; under such circumstances where there. had been a non-compliance on the part of the defendant and his sureties, with the condition of their bond, it was useless. 4. That admitting this bond to be an obligation with a penal clause, yet there should be a judgment for plaintiffs WELCH & Co. V8. THORN ET AL. for the whole amount; as there was no lawful excuse for its WESTERN DIST. non-performance, such as if inevitable accident or inevitable October, 1840. force had been shown. See Louisiana Code, article 2116. But it is contended that these have been part performed, and that the penalty should be modified by the judge, and further that the defendants should have been put in morâ. To all which it is answered, that it cannot be necessary to put a person en demeure, who has bound himself to do any thing in court by a judicial bond, and that the judge should not modify the penalty, unless cause be shown that it was a faculty that the judge possessed, but that it was not a matter of strict right, and there was no reason why it should be done in the present instance. 3 Toullier, No. 839. Gen. Thomas, Hyams and Brent, for the defendants. The bond sued upon, was taken under the act of congress of 1789, and must be construed with reference to the provisions of that act. 2 Louisiana Reports, 398. 2. The act of 1789, required that the party applying to remove his case from the state to the Federal court, should give bond that he would file in the Federal court copies of the process against him, and enter special bail, if originally requisite therein. It then provides that in case copies of the process are filed, the state court shall be deprived of all further jurisdiction in the case. This last was done by the defendant, and the court of the United States had, therefore, full authority to proceed to trial and judgment. The putting in special bail is not made necessary by the act of congress, in order to authorize the Federal court to try the cause. The filing of the copies of the process alone is required, and the judgment taken by the plaintiff against the defendant for his costs, put a legal termination to his suit. 3. The defendants bound themselves, in the penal sum of twelve thousand and five hundred dollars, that Frost Thorn would put in special bail in the Federal court. If the plaintiffs have sustained damage, by a non-compliance with this obligation, upon having those damages expressed, the defendants will be responsible upon the bond. That this was WESTERN DIST. intended as a penalty, and not in the nature of liquidated October, 1840. damages, is manifest from its large amount, exceeding by twenty-five per cent. the amount stated to be due, as well as by the other facts of the case. 7 Wheaton, 13. 3 Johnson, 5 Martin, 561. WELCH & Co. V8. THORN ET AL. 298. 4. The liability of the defendants, in any event, could not exceed the liability of special bail or bail to the action. They bound themselves to put in special bail, and not having done so, the damages incurred are precisely the amount of the loss suffered by plaintiff. What loss have plaintiffs sustained? The special bail would have been responsible for the amount of the judgment obtained against defendants, and for nothing more. That judgment was merely for costs, and the liability of defendants can in no event extend beyond these. 2 Johnson, 340. The plaintiff cannot recover in this suit, and the judgment of the lower court should be affirmed. Because the plaintiff in no court recovered any judgment against the principal on the bond, which is a condition precedent to any recovery against him, or his sureties therein. 2. That all the conditions of the bond have been complied with, (entering copies of process and filing answers) so far as to give the United States Court jurisdiction of the case, and wherein the plaintiff could have gone on to judgment. That the failure to enter special bail (that is the same kind of bail as was taken in the original cause of action, under article 219. of the Code Practice, recognized by the laws of the United States, 1824,) could only create a liability, co-extensive with but not greater than the liability of special bail, or the bail under article 219. Contracts and obligations must be construed according to the intentions of the parties contracting, and the extent and limitations of the responsibility created thereby, are to be sought not by mere examination of the terms of the instrument, but by the principles of law, applicable thereto, and the decisions of the courts thereon. Civil Code, 2032. Code of Practice, 219. 3 Louisiana Reports, 509. 8 Louisiana Reports, 123. 9 Louisiana Reports, 452. 6 Wheaton, 475. Appearance bail may defend suit, if special |