alty again became the debt, and was recoverable without any reference whatever to the actual damages incurred. Hence many difficulties arose. Lord Kaims says, (f) that the bond was introduced originally to evade the common law of England, which prohibited the taking interest for money. Whatever reason led to its introduction, certain it is, that its peculiar form has occasioned infinite doubt and contradiction. In regard to our present subject, we shall first consider what sum can be recovered under or within the penalty. Secondly, how by assigning breaches, that sum is arrived at. Thirdly, when the penalty is considered as liquidated damages. beyond the penalty. And lastly, what can be recovered And first, as to the damages that may be recovered under or within the penalty. The action of debt, as has been said, is the usual remedy provided by the common law for the recovery of a sum certain. And in an action of debt for condition broken, the amount of the plaintiff's recovery was originally, as has also been said, the penalty; nor could the action be relieved against, either by payment or tender: no defense would avail but a release under seal. And this severe rule of the common law was only mitigated by the practice of the courts of chancery, which interposed and would not allow a man to take more than in conscience he ought. (g) It became early settled in equity that the condition of the bond was the agreement of the parties, and as such the obligor was relieved from the penalty. (h) Lord Somers said, (¿) "that where the party might be put in as good a plight as where the condition itself was literally performed, there the Court of Chancery would relieve, though the letter of it were not strictly performed, as payment of money, &c. But where the condition was collateral and in recompense, and no value could be put on the breach of it, then no relief could be had for the [394] (ƒ) Prin. of Equity, Book iii., ch, ii., 279. (g) Black. Com., book ii., chap. 20, 341, For cases of this description in Chancery, see Hale v. Thomas, 1 Vern., 349, and Steward v. Rumball, 2 Vern., 509; also, Show. Par. Cas., 15. Bond and Penalty, Abr. Eq., 91, 92. (h) Acton v. Pierce, 2 Vern., 480. Cannel v. Buckle, 2 P. Wms., 243. Watkyns . Watkyns, 2 Atk., 97. Bishops v. Church, 2 Ves., 371. Parks v. Wilson, 10 Mod., 515. Hobson v. Trevor, 2. P. Wms., 191. Chilliner v. Chilliner, 2 Ves., 528. Collins v. Collins, 2 Burr., 82. See Pothier, by Evans, on Penal Obligations, appendix, and Fonblanque's Treatise on Equity. (i) Prec. in Ch., 487. breach of it." (1) This practice was followed by the common law tribunals, which ordered the proceedings to be stayed upon bringing into court the principal debt, interest, and costs. (j) Finally, this discretionary power was confirmed by a statutory regulation, which provided that in actions on bonds with penalties, the defendant might bring in the principal debt, interest, and costs, and be discharged. (k) This legislation has been followed in this country. In New York, () it is declared that in actions on penalty bonds, the plaintiff may plead payment of the debt made before suit brought, though not according to the condition; and that after suit brought, the defendant may bring debt, principal, and costs into court, and that thereupon the action shall be discontinued. Speaking of the English original of this statute, Lord Mansfield said, (m) "That it was made to remove the absurdity which Sir Thomas More unsuccessfully attempted to persuade the judges to remedy in the reign of Hen. VII.; for he summoned them to a conference concerning the granting relief at law, after the forfeiture of bonds, upon payment of principal, interest, and costs, and when they said they could not relieve against the penalty, he swore by the body of God he would grant an injunction." And in another case, (n) he said, "It was extraordinary, that after it was settled in equity that the forfeiture might be saved by the performing the intent, and that this was the nature of a bond, the courts of law did not follow equity, but still continued to do injustice as of course, and put the parties to the delay and expense of setting it right elsewhere as of course." (0) Notwithstanding this statute, however, it is apparent [395] that great injustice might be committed; because the plaintiff was entitled to judgment for the whole amount of the (j) Gregg's Case, 2 Salk., 596. Anon., 6 Mod., 11. Butler v. Rolf, ib., 25. Anon., ib., 29. Burridge v. Fortescue, ib., 60, and Ireland's Case, ib., 101. In Burridge v. Fortescue, the court said, "It is an equitable motion, to be relieved against the penalty." (k) 4 Anne, chap. 16, §§ 12 and 18. (4) Rev. Stat., vol. 2, 353, §§ 26, 27. 1374. (0) In this last case it was held that bonds conditioned for payment of money by installments, were within the Act of 4 Anne. (1) Courts of Equity will not relieve against stipulated damages, Williams v. Green, 14 Barb. (Ark.), 315; Westerman v. Means, 12 Penn. St., 97. penalty, and the defendant could only be discharged by addressing himself to the equitable consideration of the court. Hence was imposed the obligation to assign breaches. By a statute enacted at nearly the same time, (p) it was declared "that in all actions, &c., upon any bond or bonds, or on any penal sum for non-performance of any covenants or agreements in any indenture, deed, or writing certain, the plaintiff or plaintiffs may assign as many breaches as he or they shall think fit; and the jury upon trial of such action or actions, shall and may assess, not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of said breaches so to be assigned as the plaintiff, on the trial of the same, shall prove to have been broken." The language here is, that the plaintiff may assign breaches; but it has been settled that the statute is compulsory, (q) and that a judgment obtained under the former practice of the common law, is bad in error. In the case last cited, Lord Kenyon and Mr. J. Buller said,— "It is apparent to us that the law was made in favor of defendants, and is highly remedial, calculated to give plaintiffs relief up to the extent of the damage sustained, and to protect defendants against the payment of further sums than what is in conscience due; and also to take away the necessity of proceedings in equity to obtain relief against an unconscionable demand of the whole penalty in cases where small damages only have accrued.” And it was accordingly held, that the plaintiff must assign breaches, and that the jury must assess the damages. The principles of this act have been engrafted upon the legislation of this country. In New York it is provided: (~) "When an action shall be prosecuted in any court of law, upon any bond, for the breach of any condition other than for the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff in his declaration shall assign the specific breaches for which the action is brought. "Upon the trial of such action if the jury find that any assignment [396] of such breaches is true, and that the plaintiff should recover damages therefor, they shall assess such damages, and shall specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them. (p) 8 and 9 Will. III., chap. 11. § 8. (9) Roles v Rosewell, 5 T. R., 538, and Hardy v. Bern, ib., 636. (r) Revision of 1813 (R. Laws, Vol. I., 518), and Revised Statutes, Vol. II., 300, 2d ed.; 378, 1st ed. "In every such action, if the plaintiff recover, the verdict of the jury assessing the plaintiff's damages shall be entered on the record, and judgment shall be rendered for the penalty of the bond, or for the penal sum forfeited as in other actions of debt, together with costs of suit; and with a further judgment that the plaintiff have execution to collect the amount of the damages so assessed by the jury, which damages shall be specified in such judgment. (8) These two statutes have together produced this reasonable and equitable result, that in the case of an agreement to do or refrain from doing any particular act secured by a penalty, the amount of the penalty is in no sense the measure of compensation; and the plaintiff must show the particular injury of which he complains, and have his damages assessed by the jury. It may, therefore, be laid down as a settled rule that no other sum can be recovered under a penalty, than that which shall compensate the plaintiff for his actual loss. In the action of debt on bond, however, judgment still [397] goes for the penalty, owing to the technical rule, that in this action the entire sum is demanded, and the penalty is the debt, according to the express terms of the instrument; this, however, is corrected by the practice which forbids the execution to issue for more than the sum really due. (s) This act has been applied to bonds conditioned for the performance of covenants contained in the same, or in any other deed or writing; for the payment of money by installments; for the payment of an annuity; or for the payment of an award; to bonds given by deputy sheriffs for the faithful performance of the duties of their office, Barnard v. Darling, 11 Wend, 27; for the performance of any other specific act, not being the payment of a sum of money in gross. It has also been applied to replevin bonds, and to bail bonds, and to bonds conditioned to restore the amount recovered in the event of a reversal on certiorari.-Graham's Practice, 2d edit., 319 and 801. Previous to the Revised Statutes, it was held, in New York, that the breaches might be assigned in the replication, or on the circuit or nisi-prius roll; but the present statute is more special; and in Reed v. Drake, 7 Wend., 345, it was held that the breaches must be assigned in the declaration; and where the plaintiff, in a suit on an arbitration bond, had omitted to do this, but had assigned the breaches in the replication, and the jury had found a correct verdict, the court in error refused permission to amend the declaration by inserting an assignment of breaches, and reversed the judgment, expressing their opinion, however, "that the court below would allow the plaintiff to amend his declaration on the usual terms." Again, in Livingston v. The Superior Court of the City of New York, 10 Wend., 545, the plaintiff, in a suit on a bond given to prosecute a replevin suit in New Jersey, omitted to assign breaches in his declaration, had nominal damages assessed, and entered judgment for the debt, damages, and costs: the defendant paid the nominal damages and costs, and applied to the court below, the Superior Court of the City of New York, for an entry of satisfaction, which that court refused. On an application to the Supreme Court for a mandamus, Nelson, J., said, that the court inclined to the opinion that it was obligatory on the plaintiff to assign breaches, but refused the motion, and left the parties to their remedy in the court below. Damages are given in the action of debt on bond for the detention of the debt; but such damages are in general purely nominal; (t) and it is proper to notice that nominal damages may be given by verdict, but not on default. (u) If, however, the interest exceed the penalty, it will no doubt be necessary to have the actual damages assessed by the jury; if the judgment goes by default, the taxing officer allows the excess in the costs. But the damages are not necessarily nominal, and the jury may give substantial damages if they see fit. (v) Liquidated Damages. We now approach another class of cases, where the parties have agreed on a sum certain as the measure of damages; and this branch of our subject, owing to the existence of the technical penalty, will be found environed by much doubt and contradiction. When speaking of the subject of damages with regard to the action of debt on bond, (w) we have stated the rule, resulting from the peculiar form of that instrument, which fixes a penalty subject to a certain condition. We have now to consider the same matter in another sense. It is competent for parties entering upon an agreement to avoid all future questions as to the amount of damages which may result from the violation of the contract, and to agree upon a definite sum, as that which shall be paid to the [398] party who alleges and establishes the violation of the agreement. (x) In this case the damages so fixed, are termed liquidated, stipulated, or stated damages. But even where this course has been adopted, and a sum certain named in the contract, difficulty has arisen as to whether it should be considered as such liquidated damages, or only as a penalty. (y) It being settled by (t) In Pennsylvania it has been held that, in debt for a penalty by the party aggrieved, damages may be given for the detention; but not in the case of a common informer. Ritchie v. Sherman, 2 Rawle, 196; Norris v. Pilmore, 1 Yeates, 408. In O'Neal v. O'Neal, 5 Watts & Serg., 130, it is said that damages in debt at common law are usually nominal. (u) People v. Hallett, 4 Cowen, 67; Lil. Ent., 473, 483, 503; Tidd's Pr. Forms, 169-70; 5 Wentw., 165-6, 414; 10 lb., 427-8, 453; 7 Ib., 402; Lil. Ent., 257, 879; Tidd Pr. Forms, 186, 187; Clapp v. Reynolds, 2 J. Cas., 409; Lord Lonsdale v. Church, 2 T. R., 388; Wilde v. Clarkson, 6 T. R., 303; Smedes v. Hoogh taling, 3 Caines, 48; Cook v. Tousey; 3 Wend., 444, 2 Saun., 107, n. 2. (v) Henry v. Earl, 8 M. & Wels., 233. In Belbin v. Butt, however, 2 Mees. & Wels., 422, the English Court of Exchequer refused to let in evidence to reduce the damages in an action of debt, on the ground that there was no inquiry in that action as to damages. But might it not have been admissible, if offered directly to reduce the damages for the detention ? (w) Ante, 412, et seq. (x) A provision of this nature has been engrafted on charter parties, and is familiarly known as Demurrage. (y) The word penalty is in this contra |