13 Mich. 195 | Mich. | 1865
Lead Opinion
This action is for the recovery of the penalty of a bond executed by Fraser and Raymond, in the penalty of $800, conditioned that one Robertson should prosecute-to effect an action of replevin then commenced by him against the defendants in error — Little, Hess and BoutelL It appears that Robertson was defeated in his action, and judgment rendered against him for the value of the prop-, erty replevied by him — viz., for $1,753 T^. I do not learn from the bill of exceptions that any execution was. issued upon such judgment, and returned as unsatisfied wholly or in part, nor that any effort was made to collect from Robertsoü the amount of such verdict. In this action, the Court rendered judgment against Fraser and Raymond for the penal sum of the bond, - with interest, (called damages for the ‘detention of the sum of $800,) from the rendition of the judgment in the action of replevin, amounting in all to the sum of1
Campbell J.:
The only question in this cage is, .whether judgment can ' be given on. a replevin bond for more than the penalty and costs. The action was an action of debt ■on a bond in the penalty of $800, and judgment was rendered for an additional sum of $210 by way of ■damages for its detention, in addition to costs of suit.
I think there is no foundation for any such judgment. "Wliere a bond, or specialty, is given in the amount actually due,- and not in a penalty, there is no reason and no rule which will prevent a recovery of interest on the .actual debt, for which the bond is only an evidence under seal. But where an undertaking or condition is ’secured by a penal bond, which is not supposed to represent the actual debt by its penalty, such penalty never became the actual debt, except by way of forfeiture, and upon such a forfeiture interest was never ■allowed to run by the common law, or by statute. And the cases cited, on the argument, from Massachusetts and Kentucky, which assume that interest runs merely from the fact that the penalty became the debt upon forfeiture, are entirely unsupported, and would prob-ably never have been made, had not the actual debt in these cases equalled or exceeded the penal sum. As authorities, they are based upon a false assumption, and ■cannot be maintained on any such principle. In England, the rule of liability upon bonds in a penalty, has been almost entirely uniform, and the only cases extending it beyond the penalty and costs have" been overruled and disregarded. The cases are collected in Hurlestone on Bonds, 107, 108, and the rule is there laid down in conformity with the prevailing authorities. The decisions
In Mower v. Kip, 6 Paige R., 91, the case was the same as in Clarke v. Lord Abingdon, and the decree was manifestly correct, because the mortgage was conditioned to secure the debt, and not the penalty. If designed to go further, the ease is not sustained by the
In New York, in Clark v. Bush, 3 Cow., 151, and Fairlie v. Lawson, 5 Cow. R., 424, it was held, after an elaborate comparison of the eases, that a surety on a bond could not be held beyond the penalty, whether the principal could be or not. Where the bond is joint, no distinction could be taken between principal and surety, and the cases generally make no discrimination between them where they are sued in debt on bond, although some cases, denying the universal effect of the penalty, admit it as to sureties. In Brainard v. Jones, 18 N. Y., 35, it was held that, in a case like the present, interest might be recovered on the penalty. .The reasons for the decision are not new, nor such as any mind of ordinary capacity could overlook. It is in direct conflict with the mass of decisions, and in conflict with the principle which underlies them all, that a penalty is not to be enlarged under any circumstances, and will not be enforced beyond its letter. With great respect for the author of the decision, I prefer to rest upon the known and settled rules of the law, which, in all such cases as the present, must be more in accordance with the understanding of the parties than any other. When the statute requires a bond in double the value of property, as fixed by sworn and disinterested appraisers, it must be presumed that neither the law nor the sureties could anticipate the necessity of any larger margin, to meet the possible views of another
I therefore concur in the views of the Chief Justice.
Dissenting Opinion
dissenting:
I am unable to concur in the opinion expressed by my brethren, that the plaintiffs below were not entitled to recover beyond the penalty of the bond in this case.
I admit the general rule that. the- amount of recovery upon a bond penal in form is limited to the amount of the penalty; but I think the principle upon which the rule rests allows interest to be recovered beyond the penalty, from the time of the breach of the condition. I do not base my opinion upon the ground that the penalty, after the breach of the condition, becomes the debt, (though the results might be the same where the ■sum due by the condition, at the time of the breach, is-the same with, or greater than, the penalty); but since Courts have ceased to enforce the penalty, without refer•ence to the amount due by the condition, Hhe penalty has never, in legal effect, or in any substantial sense, constituted the debt or sum to be recovered. It is so in form only, in consequence of still adhering to the forms in use when Courts actually enforced the payment -of the penalty, though it exceeded the sum due by the condition.
But since the sum to be collected has been confined to the amount due by the condition, this is the sum which, in fact, and in legal effect, so far as - the rights of the parties are concerned, constitutes the debt, or amount to be recovered, except when that sum would ■exceed the penalty mentioned in the bond; and then that sum is limited to the extent of the penalty. The penalty, therefore, has long since ceased to have any ■other effect upon the rights of the parties than as a limitation upon the amount which might otherwise be
The legal effect of the bond in the present case, so far as relates to the sum to be recovered, is simply that of a contract under seal, without a penalty by which the obligors become responsible for, and agree to pay any amount not exceeding $800, of “ all such sums of money as may be recovered by such defendants against them in the said actions.”
And when the judgment in the replevin suit had fixed, the amount to be recovered of the defendants in that suit at a sum exceeding the $800 — the penalty of the bond— their liability became fixed at that amount; and from the moment it became the duty of the obligors to pay this amount, their liability was, to all substantial purpioses, the same as upion a direct and unconditional contract to p>ay the $800 at that time. And they stand in the same position as other debtors upon ordinary contracts, whose obligation is to pay the sum when due; and if they fail to do so, I can discover no substantial or just principle upon which interest can be refused, more than in any other case where money has not been paid when the creditor has become entitled to it. This interest the law gives in no case as a part of the money due by the terms of the contract, but by way of damages for its breach — for the delay in piayment; because, if paid when due, it would have earned interest.
I am well aware of the conflict in the aiithorities upon this question, having carefully examined every case cited by my brethren, and in the briefs of counsel, with many others. Most of the cases which have denied the
I am unable to appreciate the suggestion of the Chief -Justice, that there is, in the Case of a replevin bond, any want or deficiency of a valuable consideration for the undertaking of the sureties, and that, for this .reason, their liability ought to be looked upon as more restricted than in cases where a pecuniary consideration has been received by the obligors. If any difference could be recognized, the case would, I think, be stronger for giving liberal ■damages in the case of a bond, like the present. The obligees did. not take this bond of their own volition. They had no voice in determining the amount of the •penalty. Their property was taken from them before a trial of their right; and the law gave them this security only in the place of it. The property could not have been thus taken but for the sureties. The penalty •turns out to be much less than their actual damages, as .judicially ascertained. The law has made a bad bargain for the obligees, and ought not to deny them interest <upon an amount equal to the penalty, from the time they became entitled to it.