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Section 52-238 – Damages in actions on penal bonds

May 11, 2021 | Civil Procedure, Connecticut

(a) In any action on a penal bond, containing any condition which has been broken, such damages only shall be assessed as are equitably due, and judgment shall not be rendered for the whole penalty, unless it appears to be due.
(b) If, upon a bond with conditions the breach of which may happen at different times, an action is brought upon the first breach, the court, upon finding a forfeiture of the bond, shall render judgment for what is due in equity at the time, with costs, and award execution. Upon any further or other breach of condition, the obligee, his executors or administrators may take out a scire facias against the obligor, his executors or administrators, from the clerk of the court in which the judgment was given, to show cause why execution should not be awarded for the money then due, or damages then sustained. The court shall thereupon render judgment for what appears to be due in equity and grant execution thereon, and may so render judgment and grant execution, from time to time, until the condition is fully performed. The whole amount of the judgments shall not exceed the penalty of the bond with interest.

Conn. Gen. Stat. ยง 52-238

(1949 Rev., S. 7984; P.A. 82-160, S. 222.)

A tender of the amount justly due on a bond, though less than its face, is good. 2 C. 662. No judgment can be rendered on any bond for more than the penalty, with interest. 4 D. 36. Interest on probate bond may run from time of demand. 38 C. 324. Statute does not apply to actions of replevin. 48 C. 140. A technical breach of bond resulting in no damage is not ground for a new trial. 60 C. 482. Cited. 71 Conn. 452. Right to chancer a bond exists only where liability is admitted. 72 C. 607. Applies to recognizance or bond made to release attachment. 74 C. 175. Scope of equities considered. Id., 338; 77 C. 70. Applies to obligations of surety. 78 C. 698. When recovery not limited to penalty. 81 C. 252. Same doctrine applied to penalty stated in injunction. 83 C. 427. Does not apply to criminal bond. Id., 686. Legal interest as measure of damages where impossible to ascertain profits made by improper use of trust funds. 120 C. 337. To be available in defense to suit on probate bond, credits for payments to creditors and legatees must have been authenticated by Probate Court through settlement of executor’s account. 124 C. 111. Cited. 128 C. 322. Damages “equitably due” means “justly due”. 148 C. 569. Cited. 177 C. 527. Cited. 19 CS 130. Recovery limited to amount of bond, with possible addition of interest. Id., 457.