Originally, courts of law, on penal bonds, could render judgment only for the penalty ; for that was considered to be absolutely forfeited, by non-payment at the day. But equity always relieved on payment of the sum actually due : and now, by statute, courts of law are vested with the same power, and may determine any matter of apparent equity, as upon the forfeiture of a bond, or obligation, or breach of covenant without damage, or the like. Of course, a penal bond is on the same footing as a single, bill or note j the court can, in the same manner, render judgment for the sum really due; and on the general issue, the jury are to find a verdict for the debt, and not for the penalty.
It has been insisted on, that this, by the statute, can he clone only on motion to the court to chancer the bond ; and that the whole penalty is forfeited at law. But this clause of the statute relates only to the case of bonds with conditions, where the breach may happen at several times, and the suit is brought for the first breach only, and where Ibero may be a subsequent breach, for which the party has a claim. But this suit is brought for the last breach, and no further suit can ever be brought.
By the common law, the payment of a debt must he on the day it falls due j and a tender cannot be made at a subsequent time. But in this state, from time immemorial, the practice has been adopted, that wherever a certain sum of money or debt is due, the debtor can make a tender of it, though the day of payment has elapsed. If the tender is made after suit brought, costs must be included to the time. This may be considered as a part of our common law ; and is too reasonable to be departed from. In England, in lieu of this, they permit the party to bring the money, witii the costs, into court 5 and if he brings sufficient, the plain I iff proceeds at his peril j if he does not recover more, he is liable to pay costs.
It appears, that the bond in suit was for the payment of a certain sum annually, on a given day. It comes clearly within the definition of an annuity. Where a certain sum is *663due on a future given day, no part is due till that day j and it is fully settled by ail the authorities, that there is no apportionment of an annuity.
Goult), J.The objections to the judgment below are, first, that the tender pleaded was after the day, appointed for payment ; and secondly, that the sum tendered was too small. But tender after the day, if properly pleaded, and pursued up, by bringing the money into court, is a strict legal defence ; not subject, (like the proceedings under the common rule for bringing money into court,) to terms, op to any discretionary controul by the court. The time of the tender, therefore, taken by itself, can, by no possibility, furnish any ground of objection.
As to the amount tendered, the objection first taken, is, that, upon the non-payment of any one instalment, the obligee was entitled to judgment for the whole penalty — > that the judgment might remain a security for all subsequent instalments : and that the tender ought, therefore, to have covered the whole penalty. But whatever might be the measure of the amount, for which judgment might have been given, under other circumstances; the case, circumstanced as it is, is clearly not open to this objection : since the in-stalment, for which the action is brought, is the last, that ever accrued, or could accrue. For the annuitant died, before the arrival of any subsequent pay-day, and the tender was made after her death. It was a matter of certainty, therefore, riot only when the judgment below was rendered, but at the time of the tender also, that no further instalment could, by possibility, accrue. And it would have been useless, and worse than useless, to enter judgment for a larger sum, than execution could issue for, when there remained nothing, to be covered by the excess.
Under these circumstances, the rule respecting the amount, to be recovered, for the instalment in question, must be the same, as if the bond liad been conditioned for the payment of a single liquidated sum, instead of several successive instal-ments. But in that case, nothing is better settled, in our law, than that the obligee can recover only so much, as appears, from the terms of the condition, to be due. Indeed, under the statute of this slate, (tit, 6. c. 1. s. 8.) upon which the question finally depends, I am not aware of any case, in *664which the obligee in a penal bond, is entitled to the whole penalty, as such. It is true, that where a gross sum, in the form of a penalty, is really, in the nature of assessed damages, he may recover the whole ; but in such a case, it is not regarded, as a penalty. And for this very reason it is, thai the whole sum is recoverable. For a bond in a penal sum, to secure the payment of a less sum, named in the condition, is, under our statute, precisely the same thing, in effect, as a single bill, or covenant, for the payment of the less sum.
According to this rule, the plaintiff was entitled, at the time of the tender, to no more than was then due, according to the condition of the bond. And what was then due, may be ascertained, by determining what was due, at the annuitant’s death. Now it is an undisputed general rule of law, that when a given sum is to accrue, as a debt, on a given day, no part of it is due, till the day arrives. The whole sum accrues, on that day ; and there can be no apportionment of it. This is one of the most familiar rules, in the law of rents, and annuities : and if it is applicable to this case, there was due to the plaintiff, no more than the sum tendered,
But it is contended, that this case is within an exception to the general rule ; and that the plaintiff was entitled, in addition to the instalment, which became due, on the first of May, 1813, to a fractional part of another instalment, proportioned to the time, which intervened, between that day, and the death of the annuitant. The exception, upon which this claim is founded, was introduced by courts of equity, and obtains only, where an annuity is payable, by way of maintenance, to an infant or feme covert — who, by reason of their legal disabilities, might be unable to procure credit for necessaries, if payment for them depended upon their living till the annuity should, by the common rule, become payable. This case, therefore, does not fail within the exception. The annuitant was not a feme covert, w hen the bond was given, and maintenance was out of the question. The nature of the transaction is disclosed in the condition. Having an estate in dower, she disposed of it, in consideration of the annuity ; which is, therefore, neither more, nor less, than the purchase-money for an estate sold.
The other Judges were of the same opinion.Judgment affirmed,