Devereux or the proceeds thereof in the hands of the defendants, in the relative order in which said claims are last herein stated, and are to be first paid in full by the defendants with and out of the proceeds of said lands. OCT. TERM, ordered and directed herein by the decision and decree of said court, and because from the accounts already heretofore taken in this cause the parties are able to ascertain by agreement tion of this cause, without the new accounting all the results necessary for the final determinadirected by said decree of Supreme Court, by consent of all the parties, plaintiff and defendant, herein, all further account herein is waived, and it is agreed that the balance charged on the land of Thomas P. Devereux, and which Mrs. life, and which, by her will, she appointed to her executors, was, on the 3d day of June, 1849, the date of her death, the sum of twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents ($21,527.67).' 9. It is further declared that the said Thomas P. Devereux, before November, 1852, purchased up all the other pecuniary legacies bequeathed by the will of the said Frances, and after said purchase, and before the day and date last aforesaid, converted to his own use all the general personal assets of the said Frances spec-F. Devereux had not disposed of during her ified in section 7 of this decree as amounting, on the 31st day of May, 1868, to forty-one thousand six hundred and thirty-three dollars ($41,633), claiming the same to belong to him to satisfy the said pecuniary legacies and the aforementioned sum of $7,500; and the court doth declare that the annuity of $150 per annum bequeathed by the will of the said Frances to the said Louisa N. Taylor was and is a first lien on said sum of $41,633 of general assets, and ought to have been first paid thereout, and that the plaintiffs ought to have been paid one third of said sum of general assets, subject to the burden of one third of the annuity of $150 per annum to the said Louisa N. Taylor; and that the said pecuniary legacies purchased by the said Thomas P. Devereux as aforesaid, and the aforesaid sum of $7,500, ought to have been paid out of the fund charged and appointed by the last will and testament of the said Frances Devereux on and out of the lands of the said Thomas P. Devereux, and the money to satisfy the same ought to have been raised on and out of said lands, and that said lands were exonerated from said burden by the use by the said Thomas P. Devereux, of the general personal assets aforesaid, whereby the plaintiffs have become entitled to have their aforesaid one third of said general personal assets, burdened as aforesaid, paid out of the proceeds of said lands in the hands of the defendants, and the said Louisa N. Taylor has become entitled to have the value of her aforesaid annuity of $150 per annum paid to her out of the said proceeds of the said lands, and in preference to the said claim of the plaintiffs; and it is declared by the court here that the last aforesaid claim of the said Louisa N. Taylor is a third lien upon the said proceeds of lands in the hands of the defendants, and the last aforesaid claim of the plaintiffs is a fourth lien on the same, and that both of said claims are to be paid by the defendants out of said proceeds in the relative order in which the same are next hereinbefore stated in full, if the said proceeds shall be sufficient to pay both of the same in full, and if not sufficient then the claim of the said Louisa N. is to be paid in full, and the claim of the plaintiffs shall be paid as far as said proceeds shall extend to satisfy the same. at June Term, 1879, of this court filed a peti11. And the said Louisa N. Taylor having, tion to be made a party to this cause and to assert her rights in the premises, and having at said Term, by the consent of all the parties, plaintiff and defendant, herein been made a party hereto, and it appearing to the court that said Louisa N. Taylor, on the 26th of March, 1869, before the register in bankruptcy proved and filed her claim on account of the legacy hereinbefore named against the estate of said bankrupt, Thomas P. Devereux, as a debt secured by lien on the lands of the said Thomas P. Devereux, to the amount of $2,926.12, with interest, and the plaintiffs having here in open court assented to the payment of said claim in the manner specified and directed in this decree, the court doth declare that there is now due to the said Louisa N. Taylor upon the $50 annuity, the sum of $1,196.45, with interest on $726.53, from Nov. 24, 1879, and upon the $150 annuity, the sum of $3,413.40, with interest on $2,179.59, from Nov. 24, 1879, charged as hereinbefore declared. that a new reference and further account in the And thereupon, it being obvious to the court premises is entirely useless and unnecessary, it is finally ordered, adjudged and decreed that the said Louisa N. Taylor recover of the defendants, William J. Hawkins and Walter Clark, assignees in bankruptcy of the estate and effects of Thomas P. Devereux, deceased, a bankrupt, and of the said Walter Clark and the defendant, Jno. Devereux, substituted trustees for Thomas P. Devereux, deceased, under the deed for the Pollock land, of July 3, 1839, the sum of ($1,196.45) eleven hundred and ninety-six dollars and forty-five cents, with interest on $726.53 thereof, from 24th November, 1879, until paid, to be paid and satisfied out of the proceeds of the sales of the said Pollock lands, in their hands, respectively, first, and in preference to all other claims against said proceeds; and that the plaintiffs, Grinfill Blake and Georgiana P., his wife, do recover of the said Elizabeth J., his wife, and Jno. Townsend and defendants, Hawkins, Clark and Devereux, 10. All the parties, plaintiff and defendant, having at June Term, A. D. 1879, of this court filed an agreement in writing waiving any fur-assignees and trustees as aforesaid, the sum of ther account, and ascertaining the balance charged on the lands of Thomas P. Devereux for the benefit of Frances Devereux at the date of her decease, in the words and figures following, to wit: ($4,569.73) forty-five hundred and sixty-nine In this cause the mandate from the Supreme Court of the U. S. is filed, and to avoid the ex-erence. pense and delay incident to taking the account 778 And that the said Louisa N. Taylor do re was, that the appellees were entitled to an account of the fund of $50,000, or so much of it as remained, as part of the personal estate of Mrs. Frances Devereux, by virtue of her will, construed as an appointment. The language of the opinion was, 98 U. S., 328 [XXV., 142]: "We conclude, therefore, that Mrs. Devereux's will was an execution of the power and an appointment of the fund to her executors. It con cover of the said defendants, Hawkins, Clark and Devereux, assignees and trustees as aforesaid, the sum of ($3,413.40) three thousand four hundred and thirteen dollars and forty cents, with interest on ($2,179.59) twenty-one hundred and seventy-nine dollars and fifty-nine cents thereof from the 24th November, 1879, until paid, to be paid and satisfied out of said proceeds of said sales of said Pollock lands in their hands, respectively, and next in order of pref-verted the fund into her own estate, at least to erence. And that the plaintiffs, Grinfill Blake and Elizabeth J., his wife, and Jno. Townsend and Georgiana P., his wife, do recover of the said defendants Hawkins, Clark and Devereux, trustees and assignees as aforesaid ($21,200.46) | twenty-one thousand two hundred dollars and forty-six cents, with interest on $13,877.66 thereof from the 24th day of November, 1879, until paid, to be paid and satisfied out of the said proceeds of the said sales of the said Pollock lands in their hands, respectively, and in the event that said proceeds shall prove sufficient to pay and satisfy said last mentioned sum in full, and if said proceeds shall not prove sufficient, then as far as said proceeds shall extend to satisfy the same. That the costs in this cause incurred, to be taxed by the clerk, be paid by the said defendants, assignees and trustees as aforesaid, with and out of said proceeds of said sales of said Pollock lands in full and without reference to the satisfaction of the four foregoing sums adjudged to be paid out of such proceeds." It is now objected to this decree that it is not warranted by the mandate of this court, in execution of which only it could be properly made; and that if the matters decreed were open under the mandate, they were adjudged erroneously. It is said, in the first place, that it was error to permit Louisa N. Taylor to become a party and set up rights not embraced in the former decree. The obvious answer to this objection is, that it was done by consent of all parties, as appears by the record. And there is no ground on which the decree in her favor can be impugned. Her annuity of $50 per annum was expressly payable out of the legacy to Thomas P. Devereux in trust, in respect to which his assignees cannot be heard to say that his land has been relieved of the charge by which the fund was to be raised, when, in point of fact, the fund never has been raised. As to the annuity of $150, although payable out of a fund expressly designated, it was a demonstrative legacy, payable, in default of that fund, out of general assets, and entitled, therefore, to the benefit of the fund of $50,000, converted by the appointment into general personal estate, and, as part of that, chargeable on the land as hereafter shown. 2 Wms. Exrs., pt. 3, b. 3, ch. 2, sec. 3, p. [1160] 6th Am. ed., 1252. It is next objected that the circuit court below erred in charging the amount found due to the appellees, as next of kin, entitled to share the undisposed residue of the estate of Frances Devereux, from the estate of Thomas P. Devereux, upon his real estate conveyed to him by his mother. It is claimed that this part of the decree is not justified by the mandate, and is erroneous on principle. But this view, in our opinion, cannot be sustained. The very point of our former decision the extent of $28,500, if there was so much of it remaining." It is conceded that the proper amount of this fund, according to the agreement of the parties, has been brought into account, and that the balance decreed in favor of the ap pellees is the true amount due to them from the estate of Thomas P. Devereux. This is so, because the personal estate of Mrs. Frances Devereux has been increased, in the account by the addition of the balance of this fund, according to the mandate of this court. But that fund is still uncollected and is a lien on the lands of Thomas P. Devereux in the hands of his assignees and trustees. Why should not the security go with the debt? The debt is the principal and the security an incident, which necessarily attends it. It certainly was not the intention of this court, in its former order, to separate them. And when it reversed the decree of the circuit court in order to award to the appellees the benefit of the fund appointed by the will of Mrs. Devereux, to become part of her personal estate, it meant also to give them the benefit of any security for its collection and payment that appointment furnished. And that such security existed, by way of lien and charge upon the land, in virtue of the appointment, and inures to the benefit of the appellees, as entitled to share in the general personal estate of the testatrix, is necessarily involved in the former judgment of this court. For that judgment did not proceed, as seems to be claimed, on the ground that the appointment of that fund by the will was merely to the legatees, or to the use of the legatees, under the will, so that when their legacies, were satisfied, no matter by what means, the land was discharged of its lien. On the contrary, that judg ment proceeded on the ground, that the will was an appointment of what remained of the fund of $50,000 as a charge upon the land, to the executor of the testatrix, so as to convert that fund into part of the general personal estate of the testatrix, thereby subjecting it, as part of that estate, to the claims of all persons entitled to share in its distribution, it being the intention of the testatrix, as expressly deduced by this court from the provisions of the will, to provide a fund in the hands of her executors, in addition to the personal estate in possession, adequate to redeem the legacies given by the will, so as to exonerate that estate from their payment. That fund was not a trust, merely in aid of the general assets, to enable the latter to meet the payment of the legacies. That was the error of the circuit court in its first decree, for which it was reversed. It was, on the other hand, as declared by this court, "An appointment of the whole fund to the executors of the will, who took it under the appointment as part of the personal estate." And that means, just what the decree now under review declares, that it is appointed to be raised by a sale of the land on which it is charged, to be paid into the estate of the testatrix, for the purpose of being distributed to the appellees, as being the parties entitled. Not only was this fund charged upon the real estate of Thos. P. Devereux appointed to his executors, so as to become part of the general personal estate of Mrs. Frances Devereux, so that in law the whole, including the undisposed of residue, became liable to distribution as one trust fund for creditors, legatees and distributees, in the order of legal priority, but that order of priority was changed by the will, as declared by this court, so as to make the fund charged on the land and appointed by the will the primary fund for the payment of the legacies, so as to authorize those entitled to the general personal estate, as in this case, the next of kin entitled to the undisposed of residue, to require that, for the purpose of paying these legacies, the specific fund charged on the land and appointed by the will should be first exhausted before resorting to the general assets of the testatrix. This court expressly so declared in its judgment on the former appeal. It said, 98 U. S., 327 [XXV., 141]: "Turning now to the will we have before us, two things are evident. The first is that the testatrix did not intend that the pecuniary legacies given for charitable purposes and to pay annuities should be satisfied out of her own personal property." After specifying the disposition made of her personal estate in possession, the opinion proceeds: "Thus it appears that, while she gave pecuniary legacies amounting in the aggregate to more than $28,500, she carefully withdrew from any positive application to their payment the personal estate she owned in her own right." Notwithstanding this, Thomas P. Devereux, acting, though wrongfully, as executor of this will, and chargeable as such, appropriates the general personal estate to his own use, to re-imburse himself the amount which he had expended in paying or purchasing the legacies; and thus charges them upon the general assets, in violation of the intention of the will and the rights of the parties who by law were entitled to share in that estate. Why are not the next of kin now entitled to stand in the place of those legatees, in respect to the fund out of which they should have been paid? Upon the familiar principle of marshaling assets by means of subrogation, when a party, having a right to resort to two funds to the detriment of another, entitled to be paid out of but one, has been satisfied out of the latter, the fund thus exonerated will in equity be subjected to the payment of the postponed claim. This is such a case. For it is immaterial that Thomas P. Devereux did not use the specific property received by him out of the estate of Frances Devereux for the purpose of paying or purchasing the legacies entitled to payment out of the fund charged on his land, because he has received credit, with the assent of the parties and by the decree of the court, in his account of the general assets of that estate, for the amount paid by him on account of the legacies. How can he say, after that, that his real estate has been discharged of the lien by his payment of the legacies? The deficiency in the general personal estate thus created by him for the purpose of exonerating his land, is, in equity, something more than a personal claim against him. It is entitled to be supplied out of the securities that attended the claims which it was created to satisfy, and these securities are in equity considered as subsisting for that purpose. As against Thomas P. Devereux himself, if he were in being and in his own right defending against this claim of the appellees, the case would be too clear for argument. What greater rights have his assignees in bankruptcy, representing his general creditors? They have come into possession of this real estate, but only with the title by which he held it, subject to the specific equity now asserted against it; and in their hands, as trustees, it must be held and applied to subserve the purposes to which in equity it is devoted. Those purposes, in our opinion, are correctly set forth in the decree of the Circuit Court; and It is, accordingly, affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. (See S. C., Reporter's ed., 436-461). Immunity of State from suit, waiver of—railroad, when corporation of a State-penalty of bondforfeiture for breach of covenants—mitigation of penalty in equity. 1. The immunity from suit, belonging to a State, which is protected by the Constitution, is a personal a suit, otherwise well brought, in which a State has privilege which it may waive at pleasure, so that in sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States is a voluntary submission to its jurisdiction. 2. A railroad corporation of one State which purchases the franchises and railroad of another corporation situated in another State, and is authorized by a statute of the latter State, to have, use and enjoy all the rights, privileges and powers possessed, and is made subject to all the duties and liabilities imposed upon the latter corporation, becomes in respect to its railroad in such other State, a corpora tion in and of that State. 3. An intention to treat the sum named in a bond as a penalty to secure the performance of the condition, and to be discharged on payment of damages arising from non-performance, cannot be inferred as a rule of law, or a conclusive presumption, from the mere form of the obligation. 4. Courts of equity will not interfere in cases of forfeiture for the breach of covenants and conditions where there cannot be any just compensation decreed for the breach. 5. Where a statute requires a railroad corporation to give a bond in a certain sum conditioned that such corporation will complete its road within a fixed time, if the railroad shall not be built within the time limited, the corporation must pay to the in the bond, and courts of equity will not interfere State, absolutely and for its own use, the sum named to mitigate the penalty or forfeiture. [No. 266.] Argued Apr. 20, 23, 1883. Decided May 7, 1883. APPEAL from the Circuit Court of the United States for the District of Massachusetts. In the year 1864 the directors of the Boston, Hartford and Erie R. R. Co., a corporation, chartered by the States of Massachusetts and Connecticut, applied to the General Assembly of Rhode Island for authority to build about seven miles of railroad within the limits of that State. The Assembly passed the Act prayed for, in 1869, but provided that it should not go into effect unless the said railroad company, within a certain time, should deposit in the office of the General Treasurer of Rhode Island, its bond in the sum of $100,000, that it would complete said road before Jan. 1, 1872. The bond was duly executed and filed, and as surety the road delivered a certificate of indebtedness of the City of Boston, for the sum of $100,000. This certificate was accepted as satisfactory security within the Act. The company became a bankrupt in 1870, and the road was not built. This bill was filed in the court below, by the assignees of the company, against the City of Boston and Samuel Clark, General Treasurer of Rhode Island, alleging that the bond had not been given within the time limited; that the directors had no power to give the bond; that the company had no power to accept the Act; that the plaintiffs as assignees had a right to the pledge, and praying that the money should be ordered to be paid to them. Clark demurred to the bill for want of jurisdiction and of equity. The demurrer was overruled, and Clark thereupon filed his answer. The case was then heard upon the bill, answer of Clark, and an agreed statement of facts, and the court entered an interlocutory decree which required the City of Boston to pay the money into the registry of the court; ordered evidence to be taken in relation to any claim for damages by reason of any breach of the bond to the State of Rhode Island; and reserved all questions of damages to the final hearing. Rhode Island, without prejudice to the demurrer of Clark, its General Treasurer, now filed a claim to the fund in the registry of the court. Upon the final hearing of the cause, the court held that the $100,000 was not liquidated damages, and that no legal damages had been proved; and entered a final decree directing that the fund in the registry of the court be paid over to the complainants. Whereupon Clark, and the State, appealed to this court. A much fuller statement and history of the case appear in the opinion of the court. Messrs. Charles Hart, William G. Roelker, A. Paine and John F. Tobey, for appellants: The circuit court should have dismissed the cause as against the respondent Clark, for want of jurisdiction; inasmuch as it is apparent on the face of the record that this is, in substance and effect, a suit against Rhode Island. Gov. of Ga. v. Madrazo, 1 Pet., 110; Davis v. Gray, 16 Wall., 203, 221 (83 U. S., XXI., 447, 453); State v. Doyle, 40 Wis., 210, 211. The contract was not ultra vires. Whether the Boston, Hartford and Erie Railroad Company had authority, under its Connecticut Act of incorporation, to accept the Rhode Island Act and build the road is immaterial, because the company had long been incorporated in Rhode Island. R. I., Acts of Gen. Assem., Jan. Sess., 1865. The sum of $100,000 named in the bond was intended by way of fixed or stipulated penalty under the statute or as liquidated damages; and not as a penal sum as security for any damages which the State might suffer in consequence of the breach of the bond. Where the parties, instead of securing the performance of the agreement by a penalty, have fixed upon a certain sum by way of liquidated damages, to be paid in the event of the nonperformance of the agreement, a court of equity, except in certain cases of waste, which will be noticed hereafter, refuses to interfere in restraining the recovery of such damages. On this point, see Preble v. Boghurst, 1 Swanst., 318, n.; Sainter v. Ferguson, 1 Macn. & G., 286; (S. C.), 14 Jur., 255; Coles v. Sims, 5 DeG. M. & G., 1; (S. Č.), 18 Jur., 683, 685; Skinner v. Dayton, 2 Johns. Ch., 535; S. C., 17 Johns., 357; Livingston v. Tompkins, 4 Johns. Ch., 425; Walker v. Wheeler, 2 Conn., 299; 2 Story, Eq. Jur. par., 1318; 2 Dan. Ch. Pr., 1658. The cases which might properly be cited to show that the damages in this case should be liquidated damages, are so numerous, that it is difficult to make a selection. We cite the following among the English cases: Ponsonby v. Adams, 2 Bro. P. C., 430; Rolfe v. Peterson, 2 Bro. P. C., 436; Lowe v. Peers, 4 Burr., 2229; Barton v. Glover, 1 Holt, N. P., 43 and n., Astley v. Weldon, 2 Bos. & P., 346 ; Reilly v. Jones, 1 Bing., 302; Crisdee v. Bolton, 3 Car. & P., 240; Fletcher v. Dyche, 2 T. R.. 32; Peachy v. Somerset, 1 Str., 447; Croft v. Goldsmid, 24 Beav., 312; Bonsall v. Byrne, Irish R. I. C. L., 573; Wood v. Wade, 2 Stark. N. P., 167; Lea v. Whitaker, L. R., 8 C. P., 70. And out of the numerous American cases we cite the following: White v. Dingley, 4 Mass., 433; Pierce v. Fuller, 8 Mass., 223; Hodges v. King, 7 Met., 583; Chase v. Allen, 13 Gray, 42; Lynde v. Thompson, 2 Allen, 456; Hall v. Crowley, 5 Allen, 304; Mead v. Wheeler, 13 N. H., 351; Tingley v. Cutler, 7 Conn., 291; Dakin v. Williams, 17 Wend., 447; Harris v. Hardy, 3 Hill, 393; Slosson v. Beadle, 7 Johns., 72; Phelan v. R. R. Co., 1 Lans., 258; Cotheal v. Talmadge, 1 E. D. Smith, 576; Bagley v. Peddie, 16 N. Y., 469; Mott v. Mott, 11 Barb., 127; Mundy v. Culver, 18 Barb., 336. Brinkerhoff v. Olp, Exr., 35 Barb., 27; Faunce v. Burke, 16 Pa., 469; Powell v. Burroughs, 54 Pa., 329; Lange v. Werk, 2 Ohio St., 520; Hamilton v. Overton, 6 Blackf., 206; Huff v. Lawlor, 45 Ind., 80; Pierce v. Jung, 10 Wis., 30; Ryan v. Martin, 16 Wis., 57; Morse v. Rathburn, 42 Mo., 594; Cal. Nav. Co. v. Wright, 6 Cal., 258; Fisk v. Fowler, 10 Cal., 512; People v. Love, 19 Cal., 676; Watts v. Sheppard, 2 Ala., 425. The following are cases of bonds where the courts have examined this question: Miller v. Elliott, 1 Ind., 484; Smith v. Smith, 4 Wend., 468; Fisk v. Fowler, 10 Cal., 512; Fletcher v. Dyke, 2 T. R., 32; Mercer v. Irving, El. Bl. & El., 563; Chase v. Allen, 13 Gray, 42; Cotheal v. Talmadge, 9 N. Y., 551; Hodges v. King, 7 Met., 583; Roy v. Beaufort, 2 Atk., 190. We submit that the case is not to be governed by the ordinary rules respecting damages under contracts between private parties, but that the sum of $100,000 is a penalty or forfeiture inflicted by the sovereign power for a breach of | has really sustained from the failure to build its laws. the road. The case falls within the principle of the decisions in: U. S. v. Hatch, 1 Paine, 336; U.S. v. Montell, Taney (C. C.), 47; Benson v. Gibson,3 Atk., 395; Treasurer v. Patten, 1 Root, 260. Messrs. Robert L. Bishop, John C. Gray and John C. Ropes, for appellees: This court has jurisdiction of the case. Even if Clark had been described as Treasurer, the suit would not have been against the State. Still less will it be so, when he is sued simply as an individual. Osborn v. Bank, 9 Wheat., 738, 857, 858; Davis v. Gray, 16 Wall., 203, 220 [83 U. S., XXI., 447, 453); The Arlington Case U. S. v. Lee, ante, 171); Gov. of Ga. v. Madrazo, 1 Pet., 110, 122, 123; U. S. v. Peters, 5 Cranch, 115; The Siren, 7 Wall., 152 (74 U. S., XIX., 129); The Davis, 10 Wall., 15 (77 U. S., XIX., 875). The plaintiffs could have recovered in this suit, even if the State had not appeared. A. G. v. Baliol College, 9 Mod., 409; Osborn v. U. S. Bank, 9 Wheat., 738, 846, 847; Davis v. Gray (supra). But the State has appeared voluntarily and claimed the fund, and has thereby submitted itself to the jurisdiction of the court. Brunswick v. Hanover, 6 Beav., 1, 39. A corporation chartered in one State cannot do acts in another State, which are not authorized by the charter, although they are permitted by such other State. "A corporation created by statute can exercise no powers and has no rights, except such as are expressly given or necessarily implied." Huntington v. Savings Bk., 96 U. S., 388, 393 (XXIV., 777, 778). A corporation can make no contracts and do no acts, either within or without the State, which creates it, except such as are authorized by its charter. Bank v. Earle, 13 Pet., 519, 588, 589; R. R. Co. v. Speer, 56 Pa., 325; Pierce v. Crompton, 13 R. I., 312, Sup. Ct. R. I., Index decisions March T., 1881, p. 18. The reason why acts done without authority outside of the incorporating State are ultra vires, is precisely the same as the reason why acts done inside of the State without authority are ultra vires, namely: that the capital stock of the corporation is in the nature of a trust fund. Upton v. Tribilcock, 91 U. S., 45-48 (XXIII., 203-205); Great Eastern R. Co. v. Turner, L. R. 8 Ch., 149; see, also, Pearce v. R. R. Co., 21 How., 441 (62 U. S., XVI., 184); E. Anglian R. Co. v. Eastern Counties R. Co., 11 C. B., 775, 812; Ashbury R. C. & I. Co. v. Riche, L. R. 7 H. L., 653. Making railroad communication between Boston and Providence was not within the scope of the charter or the several powers given to carry out that scope, and was ultra vires. Eastern Counties Ry. Co. v. Hawkes, 5 H. L. Cas., 331; Pearce v. R. R. Co. (supra); Hood v. R. R. Co., 22 Conn., 502; Penn. D. & M. Steam Nav. Co. v. Dandridge, 8 Gill & J., 248; East Anglian R. Co. v. Eastern Counties R. Co. (supra). Rhode Island can recover on the bond in question, if valid, only the damage it proves it The obligation imposed by a bond is, that the obligor is bound for the damages caused by the breach of the condition, to an amount not exceeding the penal sum. Equity construed a bond according to the original intent, to be an obligation to perform the condition, and accordingly held that the obligee was entitled to a decree directing the obligor to specifically perform the act set forth in the condition. Anonymous, Mosely, 37; Holtham v. Ryland, 1 Eq. Cas. Abr., 18 pl., 8; Parks v. Wilson, 10 Mod., 515, 517, 518; Hobson v. Trevor, 2 P. Wms., 191; Sloman v. Walter, 1 Bro. (C. C.), 418, 419; see, also, Blake v. E. I. Co., Finch, 117, 118; Tall v. Ryland, 1 Ch. Cas., 183; Benson v. Gibson, 3 Atk., 395; Hardy v. Martin, 1 Cox, 27; S. C.,1 Bro. (C. C.), 419, note; Sloman v. Walter, 1 Bro. (C. C.), 418; Errington v. Aynerly, 2 Bro. (C. C.), 341; Bertie v. Falkland, 3 Ch. Cas., 129; Marks v. Marks, Prec. Ch., 486; Hill v. Barclay, 16 Ves., 402; 18 Ves., 56; Reynolds v. Pitt, 19 Ves., 134; Peachy v. Somerset, 1 Str., 447. There are no late cases in equity on bonds, because the doctrine of equity has been taken up into the common law by virtue of statutes, of which 8 & 9 Wm. III., ch. II., sec. 8, was the first. In 1790, it was settled that the main object of the statute being to relieve obligors, Savile v. Jackson, 13 Price, 715; Smith v. Bond, 10 Bing., 125, it was to be construed liberally and to be compulsory, Hardy v. Bern, cited in 5 T. R., 636; Roles v. Rosewell, 5 T. R., 538; and to include all bonds, except those against which courts could relieve under other statutes without the intervention of a jury. Roberts v. Mariett, 2 Wms. Saund., 187, ed. of 1845, n. 2; Collins v. Collins, 2 Burr., 820; Welch v. Ireland, 6 East, 613; Leake, Cont., 144, 1083. The practical effect of this statute was to adopt the rule in equity, and was concisely stated by Baron Parke in Beckham v. Drake, 2 H. L., 579, 629: "That statute in effect makes the bond a security only for the damages really sustained." The several States, including Rhode Island, have passed statutes in substance like the English statute. It is unnecessary to consider them particularly, because the U. S. R. S., sec. 961, is explicit and to the same effect. Accordingly, neither in England nor America, neither in equity nor under the statutes, has the penalty of a bond been considered as liquidated damages. Equity has in some cases refused to interfere, not because the penalty is liquidated damages, but because the penalty is the punishment imposed for committing a crime. Benson v. Gibson, 3 Atk., 395; Treasurer v. Patton, 1 Root, 260; U. S. v. Montell, Taney, 47. In some cases the obligee has been allowed to recover a sum equal to the penalty; not because the penalty was liquidated damages, but because the condition provided that such sum should be paid as liquidated damages. Fletcher v. Dyke, 2 T. R., 32; Mercer v. Irving, El Bl. & El., 563; Cotheal v. Talmadge, 9 N. Y., 551; Smith v. Smith, 4 Wend., 468; Bagley v. Peddie, 16 N. Y., 469; Chase v. Allen, 13 |