As said by the Supreme Court of the United States,56 " There has been much contrariety of opinion upon the question whether, in any case, the obligee in a penal bond can recover interest in addition to the penalty. The weight of authority in England is adverse to the recovery.57 In this country the tendency of the decisions in the state courts seems to be in favor of the allowance of such interest." 58 The court added, "In this court, although the question seems not to have frequently arisen, the English rule has usually but not invariably been followed.59 In the state of the decisions, we may safely apply the rule followed by Mr. Justice Clifford in a case at the circuit, and we need go no further in order to overrule the contention raised by the Government at the trial of the present case: ' Sureties, if answerable at all for interest beyond the amount of the penalty of the bond given by their principal, can only be held for such an amount as accrued from their own default in unjustly withholding payment after being notified of the default of the principal.'" 60 But in a later decision the Court followed the law of the State where the contract was made and allowed interest in excess of the penalty of the bond and against a surety from the date when the liability on the bond accrued.61
56United States v. United States Fidelity Ac. Co., 236 U. S. 512, 630, 50 L. Ed. 606, 35 Sup. Ct. 296.
57 Citing 1 Wins. Saunders, 68, Note; White v. Sealy, 1 Doug. 49; Wilde v. darkson, 6 Term. Rep. 303 (ctittpproving Ld. Lonsdale v. Church,
2 Term. Rep. 388); Tew v. Winterton,
3 Rro. Ch. 489; 29 Eng. Reprint, 660, (563, note.
58 Citing Perit v. Wallis (Pa. Sup.
Ct), 2 Doll. 262, 265, 1 L. Ed. 370;
Wffliams v. Willson, 1 Vt. 266, 273;
Judge of Probate v. Heydook, 8 N. H.
491, 494; Wyman v. Robinson, 73
Me. 384, 387, 40 Am. Rep. 360;
Carter v. Thorn, 18 B. Mon. 613, 619, to which may be added Holmes v.
Standard Qfl Co., 183 111. 70, 65
N. E. 647.
59 Citing, M'Gill v. Bank of United
States, 12 Wheat. 511, 515, 6 L. Ed" 711; Farrar v. United States, 5 Pet. 373, 385, 8 L. Ed. 159; Ives v. Merchants' Bank, 12 How. 159, 164, 165, 13 L. Ed. 936; United States v. Broadhead, 127 U. S. 212, 32 L. ed. 147.
60 United States v. Hills, 4 Cliff. 618; Fed. Cas. No. 15,369. This is in effect the same rule applied in Ives v. Merchants' Bank, 12 How. 159, 13 L. Ed. 936. See also United States v. Quinn, 122 Fed. 65, 58 C. C. A. 401. This rule was followed in Tusseo v. American Bonding Co., 226 N. Y. 171, 123 N. E. 142, the court holding the defendant liable for interest on the penal sum only from " the time when he could have safely paid the same, providing he then unjustly withholds it."