#### * William Warner *versus*Richard Thurlo and Others

In debt on bond, judgment may be for the penalty and interest from the commencement of the suit, and no more.

Debt on a replevin bond, in the penalty of 50 dollars. The now plaintiff, who was defendant in the original suit, had judgment for a *142return of the goods replevied, which had been valued at 25 dollars, and for his damages, assessed at 7 dollars 49 cents, with costs taxed at 72 dollars 29 cents. The goods had not been returned, having been converted by *Thurlo*to his own use. The question was, for what sum judgment should be rendered in the present action ; the plaintiff claiming the value of his goods, the amount of his damages and costs, and interest on the whole from the rendition of the judgment ; and the defendant resisting so much of the claim as extended beyond the penalty of the bond and interest thereon.

Fessenden, for the plaintiff, cited 1 *Mass. Rep.*308, *Harris*vs. *Clap 8f Al.*— 2 *Mass. Rep.*118, *Pitts*vs. *Tilden &/■ Al.*— 2 *D. fy E.*388, *Lonsdale &f Al.*vs. *Church.*— 1 *East,*436, *M’ Clure*vs. *Dunkin.*— 1 *Powell on Contracts,*315. — 8 *Mass. Rep.*145, *Arnold*vs. *Bailey &f Al.*—12 *Mass. Rep.*409, *Mattoon*vs. *Pearce &f Al.*

*Greenleaf*for the defendant.

*Per Curiam.*

It was decided, in the case of *Harris*vs. *Clap & Al.,*that, in a suit upon a bond, damages may be recovered beyond the penalty, so as not to exceed interest on the penalty from the commencement of the action. Further than that, no case decided in this commonwealth will be found to have gone; and by the latest decisions in *England,*it seems that nothing beyond the penalty can be recovered.

The surety in a bond may be supposed to know that he is responsible, to the amount of the penalty and the interest, provided a breach of the condition will amount to so much in damages; add he cannot complain of the legal consequences of his contract. But to extend his liability further, would be to make a contract for him to which he never assented, (a)

(a)

 Vide *Carter*vs. Carter, 4 *Day's R.*30. — *United States*vs. *Arnold,*1 *Gall.*360. *— M'Clure*vs. *Dunkin,*1 *East,*437. — *Hefford*vs. *Alger,*1 *Taunt.*218.— *Wild*vs. *Clarkson,*6 *D. & E.*303.— *Goldhawk*vs. *Duane, 2 Wash. C. C. R.*323. — *Bank of United States*vs. *M'Gill,*1 *Paine,*661. — *Rushforth, Ex parte,*10 *Ves.*409. — Sed vide *Lonsdale*vs. *Church,*2 *D. & E.*338. — *United States*vs. *Arnold,*9 *Cranch,*184. — *Francis*vs. *Wilson,*1 *R. & M*105. — Where the obligee is plaintiff, equity in general will not carry the debt beyond the penalty, he having made himself the judge of his recompense.— See 1 *Vern.*360. — 1 *Salk.*254. — 2 *Vern.*509. — 2 *Br. P. C.*409. — 1 *Atk.*75. — 3 Br. *Ch. C.*489—496. — *Dick.*305, 408, 514. — 2 *Anstr.*525. — 3 *Ves.*557. — 4 *Ves.*329. —But it seems to be otherwise where the obligee is defendant; as then the maxim will apply, that he who seeks equity must do equity. — 1 *Equ. C. Ab.*92, pl. 7. — And equity will, under special circumstances, carry a debt beyond the penalty, as where a man is kept out of his money by an injunction, or is prevented from going on at law; (see *Show. P. C.*251;) or where a bond is only taken as collateral security; (2 *Br. P. C.*338;) or when the recovery of the debt is delayed by the obligor; (see 6 *Ves.*192;) or there are sotne other special circumstances. — See 6 *Ves.*416.