(dissenting). In this suit upon a bond in the penal sum of $5,000, breaches of condition were proved and a judgment entered for’six cents. The effect is that the bond is merged in the judgment and six cents is all the city can ever recover. The judgment should have been entered for the penalty and execution issued for the proper amount from time to time. This, however, is a mere technical or perhaps clerical error. My real objection to the result is that the opinion of the court precludes' any substantial recover}7, not only on this bond, but on any bond that may be taken by a municipality to secure- the performance of public obligations; for it can rarely happen that the municipality as such is damaged'by failure to perform. The damage is to the public not to the municipality. The reason for the rule on *197which the opinion rests is the presumption that what the parties meant to secure was the actual damages rather than the penalty, and this reason must fail where there can be no actual damage to the obligee. In this respect, the case is like Clark v. Barnard, 108 U. S. 436. It differs, however, since this bond is conditioned for the performance of all the provisions of the ordinance. Among those provisions are provisions for tire payment of specific fixed penalties for the violation of certain covenants to be performed by the traction company. Those covenants have been violated and I think the penalties are due. It seems to me a great stretch of the law to hold that specific penalties fixed by a municipal ordinance are in fact meant only to secure actual damages. The penalties are actual damages and the loss of the penalties is the only damage the city as a municipality can suffer.
For affirmance — The Chancellor, Chief Justice, Garrison, Trenchard, Parker, Yoorhees, Kaltscií, Yreden-BUEGH, CONGDON, WHITE, T.ERHUNE, JIbPPENHEIMER, JJ. 12.
For reversal — Swayze, M intuen, JJ. 2.