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 *204recovered upon the condition. It has no longer any of the legal characteristics of a penalty, as no forfeiture, in any substantial or legal sense, takes place upon a breach of the condition. The old names, it is true, are retained,, ■with the old forms of pleading; but the penalty has become a mere limitation, and the forfeiture but an ordinary breach of contract.
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 *205right to recover beyond the penalty, are cases which did not involve this question of interest. I think the weight of American authority is in favor of the allowance. But, however this may be, the rule which allows such interest beyond the penalty, after breach, is the only one to be •deduced from all the authorities, English and American, which rest upon any sound and intelligible principle, and not upon mere forms without substance, or words whxch have lost their essential meaning.
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.