One of the latest American cases is instructive in this connection. In Holbrook v. Tobey, 66 Me. 410, where a party bound himself, in a sum certain, not to carry on or allow to be carried on a particular kind of business within a certain territory or within a certain time, the sum stated was held to be liquidated damages, and not in the nature of a penalty, on the authority of several of the English cases already cited.

We cannot help thinking that, in reference to the construction of these contracts, courts have gone too far in engrafting upon the agreements of the parties a meaning and a purpose which, in many instances, will contravene their intention. For, where parties have explicitly and positively expressed their agreement that a sum certain shall be paid on a particular event, this should control and override all the technical rules of construction; and this is the very view taken by Gilchrist, J., in Brewster v. Edgerly, 13 N. H. 275, where he says, "When the contract reasonably construed has a plain meaning that one party shall, in a certain contingency, pay the other party a definite sum, the relieving him from that liability, and making the contract mean something which on its face is not apparent, by assuming that we can place ourselves in the position of the parties, and can then know precisely what would have been equitable for them to do, is nothing else than a rescission of their contract, and a substitution for it of one made by the court."

2. Can the recovery exceed the penalty? The quantum of damages recovered varied formerly according to the different modes of procedure under the common law. Where the performance of a covenant was secured by a bond in a certain penalty, the party suffering damage had his option to sue on the covenant, or to sue in debt on the bond, for the amount of the penalty. It became at first the usual practice to sue for the amount of the penalty in an action of debt; and, in this manner, a great hardship fell upon the obligor, who had no remedy against paying the whole amount in law. Equity thereupon interposed, and relieved from the full penalty on payment of the principal, the real debt, interest, and costs. Prec. in Chan. 487. This principle of equity was subse

2 Ala. 425; Streeter v. Rush, 25 Cal. 67; Gammon v. Howe, 14 Me. 250; Gowen v. Gerrish, 15 id. 273; Brewster v. Edgerly, 13 N. H. 275; Mead v. Wheeler, id. 351; Chamberlain v. Bagley, 11 id. 234; Durst v. Swift, 11 Texas, 273; Ryan v. Martin, 16 Wis. 57.

quently introduced at law, and finally confirmed by statute 4 Anne, ch. 16, §§ 12, 13, which provided that, in actions on bonds with penalties, the defendant might bring in the principal debt, interest, and costs, and obtain his discharge. Lord Mansfield, in Lowe v. Peers, 4 Burr. 2225, pointed out the procedure in these cases. "There is a difference," he says, "between covenants in general and covenants secured by a penalty or forfeiture. In the latter case, the obligee has his election: he may either bring an action of debt, and recover the penalty, after which recovery of the penalty he cannot resort to the covenant; or, if he does not choose to go for the penalty, he can proceed upon the covenant, and recover more or less than the penalty, toties quoties."

By Stat. 8 & 9 William, ch. 11, § 8, when a party proceeded on the penalty, he was obliged to assign breaches, and the actual damages were only to be assessed by the jury. Under this statute, a penalty for the performance of covenants was the limit which the recovery could not exceed. Wilde v. Clarkson, 6 T. R. 303. This was the case of a bond of indemnity, conditioned to indemnify a parish against the support of a bastard child. The cases in England show that, in actions against sureties on bonds, no more could be recovered than the amount of the penalty and costs. Hefford v. Alger, 1 Taunt. 218; Brangwin v. Perrot, 2 W. Bl. 1190; M'Clure v. Dunkin, 1 East, 436.

But a distinction must be taken between penal bonds conditioned for the payment of a sum of money, and covenants secured by a penalty. Sedgwick on Damages, p. 425, very properly remarks, "There is a clear distinction between a covenant in which the party, affirmatively stipulating to do or refrain from doing some particular act, proceeds to secure his agreement by a penalty, and the common bond, which merely stipulates for the payment of a sum of money, and makes its payment depend upon a condition." In the former case, damages beyond the penalty are recoverable. Winter v. Trimmer, 1 W. Bl. 395; Harrison v. Wright, 13 East, 343. In the last case, the action was against a ship-owner, for a breach of agreement for a charter-party. In the memorandum of agreement, the defendant agreed to proceed with all convenient speed to a foreign port, and there load, and return and deliver the same.. The agreement concluded with a penalty for non-performance of thirteen hundred pounds. The question was, whether a recovery could be had beyond this sum. It was held damages could be given beyond the penalty.

In an early case in Pennsylvania (Perit v. Wallis, 2 Dall. 252), the jury were instructed that they could assess damages beyond the penalty. So in Martin v. Taylor, 1 Wash. C. C. 1, Washington, J., said, that "where there is a penalty in an agreement under seal, the party injured may at common law sue for the whole penalty, and must be satisfied with it; or he may bring covenant, and recover in damages more or less than the penalty." And in Graham v. Bickham, 4 Dall. 149, it was held, where the penalty of a contract is not in the nature of stated and ascertained damages on non-performance, the injured party may recover damages beyond the penalty. In Shreve v. Brereton, 51 Pa. St. 175, it was held that, in case of a breach of an agreement, secured by a penalty, a recovery could be had exceeding the penalty.

The difficulty of this question arises in reference to ordinary bonds, with a penalty to secure the performance of some act or the payment of a sum of money. The American cases are not agreed on this point as to the limit of the amount of the recovery. The language of Sedgwick on this head is, "The question has been much agitated as to damages in gross, and also as to interest, and both as against a principal and against a surety. The American rule to be deduced from all the cases seems to be, that, against a surety in debt on bond, nothing shall be recovered beyond the penalty; that, against the principal in that form of action, interest may be recovered beyond the penalty." Damages, p. 425. This is hardly a correct statement of the law. It is undoubtedly true, as a general rule, that, in actions upon penal bonds with collateral conditions, the plaintiff can never recover more, in the shape of damages, than the penalty. Bonds for the prosecution of appeals, bonds given by public officers for the faithful discharge of their duties, injunction and replevin bonds, are of this class. But where a default has been made to pay on a breach, according to the condition of the bond, interest has been allowed on the sum due, even if the recovery on the whole exceed the penalty. A failure to pay the money when due will cause the amount to be regarded as a debt, on which interest. will be allowed even against a surety. An early case in New York held that interest was recoverable on a bond against the prin

1 Branscombe v. Scarbrough, 6 Q. B. 13; Balsley v. Hoffman, 13 Pa. St. 603; Clark v. Bush, 3 Cow. 151; Fairlie v. Lawson, 5 id. 424; Farrar v. Christy, 24 Mo. 474; United States v. Magill, 1 Paine C. C. 669.

cipal, though the amount recovered exceeded the penalty. Smedes v. Hooghtaling, 3 Caines, 48. In Lyon v. Clark, 8 N. Y. 154, the defendants gave a bond to the plaintiff in the penal sum of six hundred dollars to secure him against certain demands. The question in the case was, whether, in an action of debt on this bond, when the sum actually due by the condition, without interest, equals the penalty, interest could be recovered as damages beyond the penalty. The court decided interest should be allowed, on the ground that if the sum is withheld after it becomes due, according to the condition, the obligor is liable for interest, though the amount exceeds the penalty. It is true the obligors were principals in this instance; but the principle on which the decision rested shows it would be equally applicable to the case of sureties in default. But the latter point was expressly decided in a subsequent case in New York (Brainard v. Jones, 18 N. Y. 35), where it was held that a recovery against a surety on a bond for the payment of money is not limited to the penalty, but may exceed it so far as necessary to include interest from the time of the breach. The same point was decided, and this case cited with approval, in State v. Sandusky, 46 Mo. 377; Tyson v. Sanderson, 45 Ala. 364.

In Carter v. Thorn, 18 B. Mon. 613, it was decided that, upon the breach of the condition of a penal bond, the penalty becomes in law a debt due; and the obligors can discharge themselves from liability, when the damages resulting from the breach exceed the penalty, by the payment of the penalty alone. But, if the damages in such case be not paid on the happening of the breach, interest will be allowed until they are paid.1

SAN FRANCISCO.

JOHN PROFFATT.

1 To the same point are Hughes v. Wickliffe, 11 B. Mon. 202; Carter v. Carter, 4 Day, 30; 2 Greenl. on Ev. 263, citing Harris v. Clap, 1 Mass. 308; Pitts v. Tilden, 2 id. 118; Warner v. Thurlo, 15 id. 154.

DIGEST OF THE ENGLISH LAW REPORTS FOR AUGUST, SEPTEMBER, AND OCTOBER, 1877.

ADMINISTRATOR.

See EXECUTORS AND ADMINISTRATORS.

APPOINTMENT. - See POWER; Trust, 1.

ASSIGNMENT OF SUIT.

A creditor of a company began a suit for winding it up, and then assigned his claim and the right to proceed in the winding-up proceedings to a shareholder in the company, who undertook to carry on the suit. Held, that such a proceeding could not be allowed. — In re Paris Skating Rink Co. 5 Ch. D. 959.

ATTORNEY AND CLIENT.-See SOLICITOR.

BAILMENT.

Plaintiff (in each case) left his bag, worth more than £10, at the cloak-room of defendant's station, and received a ticket therefor, on the face of which was the date and number of it, and the time of opening and closing the cloakroom, and the words: "See Back." On the back it was stated that the company would be responsible only to the amount of £10. There was also a notice to this effect hung in the cloak-room, in a conspicuous place. The judge left these questions to the jury: "1. Did the plaintiff read or was he aware of the special condition upon which the article was deposited? 2. Was the plaintiff under the circumstances under any obligation, in the exercise of reasonable and proper caution, to read or make himself aware of the condition?" Both questions were answered in the negative, and the judge ordered judgment for plaintiff. Held, that there must be a new trial. — Parker v. The South Eastern Railway Co.; Gabell v. The Same; s. c. 1 C. P. D. 618; 11 Am. Law Rev. 275.

BANKRUPTCY.- See DETINUE; PROXY; SET-OFF.

1. Will in the following words: "I... bequeath to G. all that I have power over, namely, plate, linen, china, pictures, jewelry, lace, the half of all valued to be given to H. . . . The servants . . to have £10, and clothes divided among them, also all kitchen utensils." The testatrix had money and much other personal property besides that specified in the will. Held, that the will covered all the personal property of the testatrix. — King v. George, 5 Ch. D. 627; s. c. 4 Ch. D. 435; 11 Am. Law Rev. 685.

by B. "And I

2. Testator gave "all debts and sums of money . . . due me. unto the said B., his executors, administrators, and assigns," &c. direct that the said trustees . . . shall give and execute unto him or "his