The opinion of the Court was delivered by
Chipman, Ch. J.The seventy fifth section of the judiciary act, is in these words,^ “ That in all cases, brought before either of the County Courts, or the Supreme Court of judicature, to recover the forfeiture annexed to any articles of agreement, covenant, bond *249of recognizance, with a condition thereto annexed, contract, charter party, or other specialty, where the forfeiture or non performance, is found by the verdict of a jury, or by the default or confession of the defendant, or upon demurrer, the Courts respectively, before whom such action is pending, are hereby authorized and empowered, to moderate the rigor of the law, and render judgment therein, for the plaintiff to recover so much as is due, according to equity and good conscience, and award execution accordingly. And when the sum, for which judgment ought to be rendered, is uncertain, the same shall, on the request of either party, be assessed by a jury.” In all cases, coming within the equitable provisions of this section, the plaintiff has a right, as well as the defendant, to apply to the Court, for the ascertainment of the sum for which judgment ought to be rendered. The plaintiff is under no necessity, if the defendant neglect to apply to the Court, to take judgment for the whole penalty, and thereby, at least in some cases, expose himself to a suit in chancery, by the defendant, for relief. The plaintiff may, indeed remit, where the sum which he ought to recover is certain, or capable of being reduced -to a certainty by computation, as in the case of principal and interest: in this case, the sum which the plaintiff ought to recover is uncertain. But, it is said that the plaintiff was premature, in his motion ; that, until the defendant had moved to chancer the recognizance, the plaintiff was entitled to a sum certain,.the whole amount of the penal sum; that the uncertainty, as to the sum to be recovered, arose from the motion of the defendant: but this argument, is wholly groundless. The uncertainty referred to by the statute, is not an uncertainty, as to the sum, which the plaintiff is entitled to recover,"according to the strict rules of the common law, but an uncertainty, as to the sum, which he ought to recover, in equity and good conscience. And it is because the uncertainty already exists, which, in this case, appears from the nature of the condition, as set forth in the declaration, that either party has a right, from the statute, to apply to the equitable authority of the Court. Indeed, I am of opinion, that, in a case like the present, where the equity of the case is apparent on the face of the record, the Court ought not, should the defendant, never come into Court, to permit the plaintiff to take judgment for the whole penalty, as a matter of course, any more than to permit the plaintiff, in an *250action of assumpsit, for goods sold and delivered, to take judgment for the full amount of the ad clamnum, or for the sum which the pfo'oti®- averred the goods to be worth. The Court, in every such case, ought to compel the plaintiff to take judgment, for that sum only, which, shall by an assessment appear to be due. It follows that the plaintiff’s motion in this case, made in the County Court to have the damages assessed, or rather the sum due in equity ascertained by a jury, was legal and proper, and that the dismission of that motion renders the judgment erroneous, for which it must be reversed.