Cases where damages formerly given under 10 Car. 2, stat. 2, c. 2. could be supported. The verdict was for the penalty only, and damages one shilling. It may be added, that Sir William Grant considered what fell from Mr. Justice Buller in Lord Lonsdale v. Church to be no longer of any authority. He said that he took it to be perfectly settled at this day, that the penalty of the bond is the debt, and that he always understood it to be so at law; Clarke v. Seton, 6 Vesey, 411, 414, 415. In this case of Clarke v. Seton Sir William Grant observed, he would not say there were not cases in which interest may be allowed upon a judgment, though a judgment upon a bond, and beyond the penalty: that such cases have occurred, when there has been great delay by writs of error, &c. as in Bodily v. Bellamy. In the case here referred to by Sir W. Grant, of Bodily v. Bellamy, which is reported 2 Burrows, 1094, an action had been brought in the King's Bench upon a bond given at Calcutta, and judgment recovered. At the time of the judgment the penalty of the bond was insufficient to have answered the whole debt, interest, and costs then incurred. But the defendant had caused very great delay in various methods. He had brought a bill in equity for an injunction, and had taken exceptions to the answer, and hindered the getting the injunction dissolved till Hilary Term 1759, when (after arguing the exceptions) it was dissolved on the merits. He then immediately brought a writ of error in the Exchequer Chamber merely for delay, and assigned the common errors. Then he pleaded nul tiel record to the scire facias upon the judgment. So that he prevented the plaintiff from signing his final judgment till November 1760. These delays having cost much time and money too, (as the costs taxed always fall short of the costs out of pocket,) and the interest running on, the case was so altered, that the penalty of the bond alone was insufficient by about 150l. to answer the total of the debt, interest, and costs. Under these circumstances, a rule had been obtained by the defendant for the plaintiff to show cause why, upon payment of the whole penalty of the bond, together with all the costs in the Court of King's Bench, and also the costs of the writ of error brought upon the judgment given by the Court of King's Bench, the execution should not be stayed, and satisfaction entered upon the record. Lord Mansfield observed, that the plaintiff (in the Court of King's Bench) being kept out of his money by a writ of error brought after a verdict, was entitled to satisfaction for this damage, under the statute of Charles 2, which obliges the plaintiff in error to give security as well for damages as costs or the plaintiff (in the Court of King's Bench) might bring an action of debt on the judgment, and have damages pro detentione debiti. The judgment of the Court of King's Bench was, that interest ought to be paid after the rate of nine per cent., according to the Indian allowance, till the ascertainment of the sum to be paid by signing the judgment; and from that time, till the actual payment of the money, after the rate of five per cent. only, upon the accumulated sum, ascertained by the judg ment: that being the real damage which the plaintiff had sustained by the delay of his execution and the detention of his debt. This relief, it will be observed, was given by the authority of the act for prevention of delays in suits of law, 10 Charles 2, st. 2, c. 2, ss. 8 and 9, under which the plaintiff in error had entered into a recognizance for paying the judgment and all costs and damages for the delay of execution to be awarded by the Court in which that judgment had been recovered. In Welford v. Davidson, 4 Burrows, 2127, interest was given under the same statute. Another case occurs in which it is laid down that damages may be recovered beyond the penalty of a bond. It is M'Clure v. Dunkin, 1 East, 436. It was assumpsit on an Irish judgment recovered upon a bond. The verdict upon the judgment included interest and a motion was made to reduce it to the penalty. Lord Kenyon said, that if that had been an action on the bond, the objection would have holden good; but after judgment recovered, transit in rem judicatam, and the nature of the demand is altered and that being an action on the judgment, it was competent to the jury to allow interest to the amount of what was due; and that in this respect there was no difference between a foreign judgment and a judgment in a court of record here. The cases of Bodily v. Bellamy and M'Clure v. Dunkin are obviously distinguishable from those before cited. Exception where action brought on a judgment. and other sta The case of Bodily v. Bellamy, it may be added, belongs to a Cases where class of which many occur in the Common Law Reports, and damages formerly given arises out of statutes passed with the view of preventing writs of under the 3 error for delay. There is an enumeration of those statutes by Hen. 7, c. 10, Chief Justice Eyre, in a case in the Exchequer Chamber, Shep- tutes. herd v. Mackreth, 2 H. Blackstone, 284. His lordship there observed, that they are perfectly consistent with each other, being all in pari materia, and nothing but a gradual extension of the first of them, the 3d Hen. 7, c. 10. He added, that as those statutes authorized the Court, under particular circumstances, to give damages at its discretion, applications to the Court were in all cases let in, which it is entirely in its discretion to refuse or comply with, and if complied with, to fix the quantity of the recompense. The order in Shepherd v. Mackreth was, that it should be referred to the clerk of the errors to calculate and ascertain the amount of the interest upon the final judgment obtained in that cause in the Court of King's Bench, after the rate of four per cent. per annum, from the time of such final judgment being entered up until the affirmance of the judgment in the court of error, and that such interest should be added to the damages for which such final judgment was entered up. The action there was brought to recover the amount of the plaintiff's bill as an attorney: and how entirely it was in the discretion of the Court to refuse or comply with the application for interest, was afterwards exemplified in Walker v. Bayley, 2 Bosanquet & Puller, 219, where the Exchequer Chamber, notwithstanding the case of Shepherd v. Mackreth, refused to refer it to the clerk of the errors to compute interest on the judgment below in an action upon an attorney's bill. But this class of cases is now become of little use, except for the analogies that may be drawn from them, as by the act 3 & 4 Will. 4, c. 42, s. 30, it is enacted, that if any person shall sue out any writ of error upon any judgment whatsoever given in any Court in any action personal, and the Court of error shall give judgment for the defendant thereon, then interest shall be allowed by the Court of error for such time as execution has been delayed by such writ of error, for the delaying thereof. As regards the Court of error, the act has destroyed the discretion mentioned by Chief Justice Eyre. The student should be careful not to mistake those cases in the books, in which interest is given under the statutes above alluded to, for cases in which interest has been given in actions upon a judgment (a). Two of the rules which may be extracted from those cases are, that interest should be given, first, if the debt upon which the judgment was recovered carried interest, and next, if the writ of error had manifestly been brought for delay. There are, however, many cases in the books, in which interest (a) Jarrold v. Rowe, 8 Price, 582, seems to have been an experiment to obtain interest and costs beyond those which under certain of the statutes above referred to had been given upon writs of error in the Exchequer Chamber and the House of Lords, and beyond those which under another of those statutes the Court of Exchequer, where the original action was brought and a verdict had been recovered, was empowered to give. The experiment was not successful. was given in error, that do not fall under either of these rules. In Gaunt v. Taylor, 3 Mylne & Keen, 302, 309, Sir John Leach is reported to have said that the Court of Exchequer Chamber, affirming the judgment upon a writ of error, would give interest upon a judgment, if the original debt carried interest, but not otherwise. This is erroneous. It may be convenient to remark, that where the judgment, being an English one, has been already obtained for the amount of the penalty, and an action is brought upon such judgment, it can form no objection to the claim of interest that the penalty will be thus exceeded. It remains to distinguish some cases in which a plaintiff may recover beyond the amount of the penalty for the nonperformance of covenants. These are cases in which the injured party has elected to sue for general damages, instead of going for the penalty. In Winter v. Trimmer, 1 W. Blackstone, 395, it was argued that where there is a special penalty in a charter-party, you cannot recover more than that penalty in an action on the case for breach of the contract. It was answered, that where there is a penalty and covenants in the same deed, the party has his election either to bring debt for the penalty, or action on the covenant for damages. Lord Mansfield, referring to a case of Bird v. Randall, in the same volume, p. 373, said, it was there determined that you may either receive the penalty and rescind the contract, or bring action on the covenants and let the contract stand. In Lowe v. Peers, 4 Burrowes, 2225, 2228, the same judge said there is a difference 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 for the penalty; (after which recovery of the penalty, he cannot resort to the covenant; because the penalty is to be a satisfaction for the whole :) or, if he does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty, toties quoties. See further, Harrison v. Wright, 13 East, 343, which was assumpsit, and in which Wilbeam v. Ashton, 1 Campbell, 78, was cited: this was also assumpsit, and Lord Ellenborough here said that the jury could not go beyond the penalty, but that within it they might give the party any compensation which he could prove himself entitled to (a). (a) Where the penalty exceeds the real damage, the defendant (supposing the case not to belong to equity jurisdiction), is relieved by the provisions of the 8 & 9 Will. 3, c. 11, s. 8. The case of Practice of courts of equity as to giving interest on judg ments. It may be useful to mention, that in instruments not under seal, it by no means follows that the party claiming compensation for default shall recover the penalty. Lord Tenterden is reported to have said that he was of opinion, and should always hold so until compelled by a higher authority to say otherwise, that whatever language the parties might choose to use (alluding to the different import of the terms penalty and damages), that in point of law a jury could not be called upon to give more damage than the party has really sustained. He confined his opinion to contracts not under seal. Instruments under seal might perhaps receive a different construction. Randal v. Everest, 1 Moody & Malkin, 41; S. C. 2 Carrington & Payne, 577. Lord Wynford has stated that he cannot subscribe to the doctrine here attributed to Lord Tenterden. Crisdee v. Bolton, 3 Carrington & Payne, 240. There is an odd case in equity which is at variance with this doctrine, that the addition of a penalty to the non-performance of a covenant or contract does not limit the liability of either party for a breach of his part of such covenant or contract. It is Shenton v. Jordan, Bunbury, 132. In case the contract was not performed, there was a stipulated forfeiture of 2001.; but a jury had given 8001.; and upon a bill filed, relief was decreed on payment of the 2007. only, the whole Court saying that the verdict ought not to have exceeded that amount. On this head little can be added to the authorities cited in the case reported in the text. In Anon. 2 Equity Cases Abridged, 470, there was a decree against an executor to pay a judgment upon a devastavit with interest, Lord Cowper saying that the recoverer was under a necessity of coming into equity for nothing, but the sum ascertained by the judgment was by law recoverable. The report is too meagre to be useful. In Ashenhurst v. James, 3 Atkyns, 270, a bill was filed by a mortgagee against a judgment creditor in possession, for an account of rents and profits. The judgment creditor appears to have had interest on his judgment. In Lord Bath v. Lord Bradford, 2 Vesey, sen. 587, where there was a devise by the Earl of Bradford to pay debts, and the person entitled to the estate until a lunatic should come of age had joined with the trustees in satisfying the debts, and had taken assignments of them, and some of those debts were judgments, Lord Hardwicke determined that the assignees of those judgment creditors were entitled to interest. Lord Hardwicke reasoned thus:-suppose there had been no devise in trust to pay debts, and suppose the judgment creditors had brought an action against the heir at law, or against the heir at law and devisee jointly, in case of a plain devise, and they had come in and |