Petition eor a rehearing.
Biddle, J.In the learned and forcible petition for a rehearing in this case, made applicable also to two other cases between the same parties and involving the same questions, we find no question made, nor authority cited, hut such as had been before fully considered in the briefs of counsel, and in the original opinion delivered in this case; hut we find some new arguments offered on behalf of the appellees.
The counsel for the appellees seem to understand our opinion as follows :
“ The law says, you can not replevy by halves. The *238court says, therefore you are liable for the whole. Wherefore ? By the magic power of section 790.”
But we do not find any such words in the opinion, nor any other words from which such propositions could be constructed, nor such meaning be fairly inferred. The substance of the opinion, however, may be stated, in brief, as follows:
“ The law says, you can not- replevy by halves, and says, that, if you do replevy, you must replevy for the whole. The court then says, by virtue of the law, that, as you have replevied, you are liable for the whole.”
These seem to us to be quite different propositions from those stated by the counsel.
Counsel also argue as follows :
“ The law requires, in numerous cases, a bond in double the amount involved, and a failure to fix the penalty' at this precise sum is held a fatal omission. Suppose, in such case, the penalty should be for only one-half the required sum; under the ruling in this case the penalty must be increased, and the surety held for the whole amount; for, unless this bond be for the right amount, it will not have the proper legal effect; and every man is presumed to know the law, and this section must be construed to mean, not the amount for which the bond is conditioned, but for the amount the law requires. No one coul'd contend for such a ruling, and wherefore ? Because the section cures.instruments by their terms defective in form or substance, but does not cure or change instruments perfect in form and substance, but not adapted to the purposes for which they were attempted to be used.”
It may be true, as to unofficial or individual bonds, when the law -requires them to be in double the amount involved, that a failure to fix the penalty at the precise sum /ill be held as a fatal omission. This question is not before us ; we therefore neither decide it nor discuss it. "
*239But the proposition is not true as to the official bonds, recognizances and written undertakings embraced in section 790, as the decisions cited in the original opinion will clearly show. Besides, a penal bond is a very different instrument from a recognizance of replevin bail. A penal bond is an executory, unadjudicated instrument, upon which, whatever the amount of the- penalty may he, the liability of the obligor can not exceed the amount of damage suffered, upon breach, by the obligee; and, upon such a bond, it may be that no liability will ever be incurred. A recognizance of replevin bail is an executed, adjudicated instrument, a judgment by confession, wherein the amount is instantly and exactly fixed between the parties by the amount of the judgment — in popular phrase it is “ the end of the law ; ” and when section 420 declares how such recognizance shall be'executed, when section 421 declares that the undertaking “ shall be for the payment of the judgment, interest and costs,” and when section 790 declares that no such recognizance “ shall be void for want of form of substance, or recital, or condition, nor the principal or surety be discharged, but that the principal and surety shall he hound by such bond, recognizance or written undertaking, to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance,” and when recovery may be had upon such defective instrument, “ to the same extent as if such bond, recognizance or written undertaking were perfect in all respects,” it seems to us that the logical conclusion is clearly with the ópinion already • pronounced in this case.
Doubtless, in cases where the law does not fix the amount, the sureties will he hound only “ to the amount specified in the bond or recognizance ; ” hut where the law fixes the amount, as in a recognizance of replevin bail, the surety can not restrict it, hut will be bound, however im*240perfect the execution of the recognizance may he, by the amount which the law prescribes. The bail can not limit his liability contrary to law; he can not say, “ 1 will make my bond according to law, but will not be bound.” Indeed, if the surety names no amount in a recognizance of replevin bail, he will be bound by the amount fixed by law. Surely, then, "it is illogical to say, that, if he names half the amount, he shall be discharged entirely.
A recognizance of replevin bail, obtained by the fraud of the judgment defendant, will be binding, unless there is fraud on the part of the judgment plaintiff. Lepper v. Nuttman, 35 Ind. 384; Laidla v. Loveless, 40 Ind. 211.
The counsel conclude their petition as follo’ws :
“¥e earnestly ask a rehearing of these causes, and ca'n not refrain from the belief that a careful examination of the question by the whole court must result in arriving at the conclusion that the ruling of the court must be reconsidered.”
All the decisions of this court are made “ by the whole court,” unless the dissent or absence of some one of the judges is noted in the decision.
The petition is overruled.
Niblack, J., was absent.