Fraser v. Little

• Decision Date: 26 April 1865
• Citation: 13 Mich. 195
• Court: Michigan Supreme Court
• Parties: James Fraser and others v. William L. P. Little and others

13 Mich. 195

James Fraser and others v. William L. P. Little and others

Supreme Court of Michigan

April 26, 1865

April 8, 1865; April 11, 1865, Heard

Error to Saginaw circuit.

The case was an action of debt on a replevin bond; was tried by the circuit judge, without a jury, and judgment rendered for the plaintiffs (defendants in error).

Judgment of the circuit court reversed and a new trial ordered.

Backus & Harbaugh, for plaintiffs in error:

The court erred in rendering judgment in favor of the defendants in error for a sum greater than the penalty of the bond set forth in the declaration.

Section 5014, Compiled Laws, prescribes the duty of sheriffs in actions of replevin, the amount of penalty, and condition of bond.

Sections 5043 and 5044 direct when suit on bond may be brought, and the proceedings therein: Williams v. Vail, 9 Mich 162.

The rule seems to be well settled, that against a surety in debt on bond nothing can be recovered beyond the penalty: Sedgwick on Damages, 451, and note, 452, 453.

The sureties in a replevin bond are, together, liable only to the amount of the penalty in the bond, and the costs of suit on bond: 1 Taunt. 218.

On a penal bond, a judgment cannot be recovered beyond the penalty: 2 McLean's R., 581, 587.

The same principle was recognized in the following cases McClure v. Dunkin, 1 East. 436; Wilde v. Clarkson, 6 Term R., 303; Hefford v. Alger, 1 Taunt. 218; 2 Wash. R., 143; 3 Cow. 151; 5 Cow. 424; 2 Wash. C. C. R., 323; 5 Peter's R., 385.

In the case 5 Peters, the court lays down in express terms that the judgment against the surety cannot exceed the penalty. And this equally excludes damages beyond the penalty, for interest, or on any other ground.

Wm. L. Webber, for defendants in error:

The only error assigned is, that the court erred in giving judgment for a sum greater than the penalty of the bond. In this there is no error.

The true rule in such a case is the one adopted by the court.

When the judgment was rendered in the replevin suit, July 5th, 1860, the liability of the plaintiffs in error was fixed, and they could then have discharged themselves. If they neglected to pay the money when due, the party entitled to the money surely may have, as damages, interest on the penalty from the time it became due.

In support of the judgment, and the ruling of the court below, we cite Brainard v. Jones, 18 N. Y., 35; Carter v. Thorn, 18 B. Mon., 613; Hughes v. Wickliffe, 11 B. Mon., 205; Walcott v. Harris, 1 R. I., 404; Harris v. Clap, 1 Mass. 308; Judge of Probate v. Heydock, 8 N. H., 493; Smedes v. Hooghtaling, 3 Caines R., 48; Mower v. Kip, 6 Paige 91; United States v. Arnold, 1 Gallison 348.

The American authorities are nearly uniform on this subject. The English cases are conflicting: Lonsdale v. Church, 2 T. R., 388; Francis v. Wilson, Ry. and M., 105; Wilde v. Clarkson, 6 T. R., 303; Branscombe v. Scarbrough, 6 Q. B., 13.

Martin, Ch. J., Campbell J. Christiancy J., dissenting.

OPINION

Martin Ch. J.:

This action is for the recovery of the penalty of a bond executed by Fraser and Raymond, in the penalty of $ 800, conditioned that one Robertson should prosecute to effect an action of replevin then commenced by him against the defendants in error--Little, Hess and Boutell. It appears that Robertson was defeated in his action, and judgment rendered against him for the value of the property replevied by him--viz., for $ 1,753 73/100. I do not learn from the bill of exceptions that any execution was issued upon such judgment, and returned as unsatisfied wholly or in part, nor that any effort was made to collect from Robertson the amount of such verdict. In this action, the court rendered judgment against Fraser and Raymond for the penal sum of the bond, with interest (called damages for the detention of the sum of $ 800), from the rendition of the judgment in the action of replevin, amounting in all to the sum of $ 1,010 31/100. The error assigned is, that the court rendered judgment for an amount exceeding the penal sum mentioned in the bond. I think this error is well assigned. The obligation of the plaintiffs in error arose upon no consideration received by them, or benefit which could accrue to them. It was purely voluntary, to satisfy the statute, and enable Robertson to prosecute his action of replevin. The statute requires such bond to be in a sum at least double the appraised value of the property replevied. This statute, I think, fixes the limit of the sureties' liability, so that, in executing a bond as surety, we must understand that he intends, and only undertakes to become liable to the extent of the penal sum mentioned, and no further, and that the statute requires nothing more from him. Although there are conflicting authorities upon this question, yet it seems to me that upon no principle of equity or justice can a surety upon such a bond, given under such circumstances and statutory requirements as the bond in this case was executed, and without any consideration received for it, or resulting benefit to spring from it, be held beyond the sum "nominated," and cast in damages, for no default of his own. The remedy of Little and others for any excess of damages over the $ 800 is exclusively against the plaintiff in the action against them. Fraser and Raymond risked $ 800, and no more, and there could be no default upon their part by reason of the failure of the plaintiff in the replevin suit, or otherwise, which could increase the penal sum of the bond, or impose upon them a greater liability than the one assumed. The statute, as above remarked, having required the bond to be at least in double the appraised value of the property replevied, they had a right to suppose, and it would be a reasonable and natural presumption that the penal sum fixed in the bond would, and should, cover all exigencies, so far as affected their liability.

I think the judgment should have been for the sum of $ 800 only, and that the judgment of the circuit court should be reversed and a new trial ordered.

Campbell J.:

The only question in this case is, whether judgment can be given on a replevin bond for more than the penalty and costs. The action was an action of debt on a bond in the penalty of $ 800, and judgment was rendered for an additional sum of $ 210 31/100, by way of damages for its detention, in addition to costs of suit.

I think there is no foundation for any such judgment. Where a bond or specialty is given in the amount actually due, and not in a penalty, there is no reason and no rule which will prevent a recovery of interest on the actual debt, for which the bond is only an evidence under seal. But where an undertaking or condition is secured by a penal bond, which is not supposed to represent the actual debt by its penalty, such penalty never became the actual debt, except by way of forfeiture and upon such a forfeiture interest was never allowed to run by the common law, or by statute. And the cases cited on the argument, from Massachusetts and Kentucky, which assume that interest runs merely from the fact that the penalty became the debt upon forfeiture, are entirely unsupported and would probably never have been made had not the actual debt in these cases equaled or exceeded the penal sum. As authorities, they are based upon a false assumption, and cannot be maintained on any such principle. In England, the rule of liability upon bonds in a penalty has been almost entirely uniform, and the only cases extending it beyond the penalty and costs have been overruled and disregarded. The cases are collected in Hurlestone on Bonds, 107 108, and the rule is there laid down in conformity with the prevailing authorities. The decisions supposed to favor another doctrine, as applicable to suits brought directly upon bonds, are Francis v. Wilson, Ry. and Moo., 105, and Lonsdale v. Church, 2 T. R., 388. In the former case, the bond was not, in any proper sense, a penal bond, as the penalty was in the exact amount of the debt mentioned in the condition, which was made expressly to carry interest. It was apparent that the sum mentioned could not be legally treated as a penalty, and the court properly enforced it as a simple money bond or specialty. Lonsdale v. Church is more directly in point, as the court refused to allow a defendant, on paying into court the penalty and costs, to obtain a discharge, and Buller J. denied that the penalty of a bond limited the recovery. But this judge seems to stand alone in maintaining the doctrine. Very shortly before, in White v. Sealy, 1 Doug. 49, he had, on the hearing of a similar application, expressed a similar opinion, but he finally concurred with his brethren in holding that he had been mistaken. In Knight v. McLean, 3 Brown's Ch., 496, sitting in an equity cause, he allowed interest beyond the penalty of a bond, but was overruled by Lord Thurlow, who held that there could be no such allowance, and that the rule was the same in equity as at law. In Wilde v. Clarkson, 6 T. R., 303, the doctrine of Lonsdale v. Church was expressly repudiated and overruled. In Hefford v. Alger, 1 Taunt. 218, the former cases were referred to, and Lord Thurlow's opinion approved; and in Branscombe v. Scarbrough, 6 Q. B., 13, where an action was brought on a replevin bond, which was very much too small to secure the judgment, the court said that granting a rule to show cause why an allowance should not be made beyond the penalty and costs, would be creating a doubt where no doubt existed. It cannot be said that under the English common law decisions, there is any room for controversy on the subject. It is only where a suit is brought on some judgment already rendered on a bond, as in Blackmore v. Flemyng, 7 T. R., 442...