majority">Cole, J.

Tbe material question arising on this appeal, and the only one about which I have had any difficulty, 'is that which relates to tbe amount of tbe special property of tbe officer in the goods taken by tbe plaintiff; or, in other words, whether interest was due and collectable on tbe judgment in tbe United States district court It is claimed by tbe counsel for tbe defendants below, that interest was due and collectable on this judgment, and that tbe court should have instructed the jury upon the point as asked by him on tbe trial. Tbe instruction in effect was, that in order to ascertain the extent of tbe special property of the officer, the jury should compute tbe amount due and unpaid on tbe judgment on the 9th day of April, 1857, in tbe following manner, namely: by allowing interest on the debt of $1,000, from the day the judgment was docketed up to tbe 24th of February, 1857 ; then deducting $175, tbe amount made on the alias execution; then adding to tbe balance tbe amount of tbe costs, and computing the interest on this last amount from the 24th of February, 1857, to tbe 9th day of April, 1857, which interest added to sucb last amount would give the value of tbe special property of tbe officer in tbe goods when they were taken from his possession under the writ of replevin; and that then interest should be allowed on the amount of such special property from tbe time of the service of tbe replevin writ to tbe day of trial, by way of *608damages for tbe taking and detention of tbe properly. Tbe court, however, refused to give tbis instruction, but directed tbe jury, in order to find tbe special property of tbe marshal in tbe goods, to take tbe amount of tbe judgment recovered in tbe district court, to wit, $1,000, without any interest, deducting therefrom tbe $175 made on tbe alias fi. fa., and adding to tbis sum $258, tbe costs in tbe judgment, and that would give tbe amount of such special property. So it is obvious that tbe whole case turns upon tbe point whether, in ascertaining tbe special property of tbe marshal in tbe goods taken, interest is to be allowed upon tbe judgment, or given by way of damages for tbe detention of tbe goods from tbe possession of tbe officer.

Tbe judgment in tbe United States district court was obtained under tbe 9th section of the late Fugitive Slave Act. Tbis section provided that a person aiding in tbe escape of a fugitive slave should forfeit and pay by way of civil damages to tbe party injured the sum of one thousand dollars for each fugitive so lost, to be recovered by an action of debt in any district court within whose jurisdiction tbe offense was committed. There is no express provision in tbe fugitive slave law which allows interest upon judgments recovered under its provisions ; and therefore, whether interest is to be allowed on such judgments must be determined by reference to other statutes, and tbe general analogies of tbe law. By section 8, chap. 188, Laws of Congress 1842 (5 U. S. St. at Large, p. 518), it is provided that on all judgments in civil cases thereafter recovered in tbe circuit or district courts of tbe United States, interest shall be allowed, and may be levied by tbe marshal, under process of execution issued thereon, in all cases where, by tbe law of tbe state in which such circuit or district court shall be held, interest may be levied under process of execution on judgments recovered in tbe courts of such state, to be calculated from tbe date of tbe judgment, and at such rate per annum as is allowed by law on judgments *609recovered in the courts of such state. The very obvious intention of this provision would seem to be, to at least allow interest on all judgments of the United States courts where, by the law of the state, interest is allowed on the judgments of the courts of such state. It is contended by the counsel for the plaintiff below, that the object of this provision was to allow interest only on judgments of the United States courts where, by the law of the state, interest may be levied under process of execution on judgments recovered in the state courts; but I think this construction is unsound, if there are any cases where interest is allowed upon judgments, which cannot be collected on execution. It appears to me it might with more reason be claimed, that the provision gives interest on all judgments of the United States courts in civil cases, and further provides that such interest may be collected by the marshal on execution where, by the law of the state, interest may be levied under process of execution on judgments recovered in the courts of such state. But however this may be, it is very evident to my mind that the effect of the provision is at least to give interest on all judgments in the United States courts where by law interest is allowed on the judgments of the state courts. We must then recur to the laws of this state to determine whether interest is to be allowed on the judgment, and I must confess the question is not free from doubt. But on the whole I am disposed to hold, with the Chief Justice, that interest should be allowed on the judgment from the time it was docketed, and more especially that interest on the amount of the special property of the marshal in the goods on the 9th day of April, 1857, must be given by way of damages for the taking and detention of the goods from his possession. For, by several decisions of this court, the rule of damages in actions of replevin is stated ordinarily to be, legal interest upon the value of the property unlawfully taken, from the time of such taking until its restitution j and I see no valid reason for saying that this rule should not apply in this case. Graves vs. *610Sittig, 5 Wis., 219; Morris vs. Baker, id., 389; Beveridge vs. Welch, 7 id., 465.

It is objected, however, that the judgment in this case, being for a penalty, did not draw interest either at common law or under our statute, but is governed in this respect by the principles applicable to a judgment where the cause of action is for a tort. It is undeniable that many of the cases make this distinction; but in the language of the annotator to Sellech vs. French, (1 American Lead Cases, 507 — 537), it is difficult to see why the character of the original cause of action should affect the right to interest on a debt liquidated and due by verdict and judgment. For, as remarked by Sutherland, J., in Sayre vs. Austin, 3 Wend., 496, “it cannot be contended with any show of reason or authority, that a judgment is a debt not due until a demand of payment is made, after the original cause of action has not only been demanded, but has been ¡n’osecuted to judgment, the highest evidence of debt known to the law, and which authorizes the plaintiff immediately to issue an execution and seize either the property or the person of the defendant. It certainly savours somewhat of extravagance to maintain that the judgment is not a debt due in every jaossible sense of the term. It is a debt due with interest from the time of its rendition: ” and this, as it appears to me, irrespective oí the question whether the cause of action was ujaon contract or for a tort. Whatever may have been the doctrine in former times, the spirit and tendency of modern decisions upon the subject of interest manifestly are, that whenever the debtor knows the precise amount he is to pay, and where he is to pay, but makes default, justice requires that he should indemnify the creditor for the wrong which he has done him ; and a just indemnity, though it may some times be more, can never be less than the •specified amount of money, or the value of the property or services at the time they should have been paid or rendered, with interest from the time of the default until the obligation is discharged.” (BeONSON, J., in giving the opinion in Van *611Rensselaer v. Jewett, 2 Comstock, 185.) It seems to me tbat tbis is the only sound and rational rule upon tbe subject, and tliat it is strictly applicable to tbe question whether interest should be allowed upon this judgment. Suppose a judgment for a penalty or for a tort, recovered in one of the circuit courts of this state in August, 1855, had been removed to this court on writ of error, and affirmed : can there be a possible doubt that the statute would require this court, on such affirmance, to adjudge to the defendant in error as damages for the delay not less than seven per cent, on the amount recovered in the court below ? See sections 5 and 10, chap. 104, R. S. 1849. These provisions leave to this court no such discretion as seems to have been exercised by the Court of Errors in New York in Gelston v. Hoyt, 13 Johns., 561-589. See this same case affirmed in 3 Wheaton, 246-333, with damages at the rate - of six per cent, upon the judgment, from the rendition thereof. See also 15 Johns., 221. Had the judgment been sued over, I cannot doubt that interest would have been recovered by wav of damages for the detention of the money. In Klock v. Robinson, 22 Wend., 157, it was held that interest was recoverable in an action of debt on a judgment for costs of the defense of an action of assault and battery. Mr. Justice CowEN, in delivering the opinion of the court in that case, reviews a great number of authorities, and comes to the conclusion that interest is recoverable in an action of debt on a judgment, whether the original demand carried interest or not. To the same effect is Lord v. The Mayor &c., of New York, 3 Hill, 426. Also Harrington v. Glenn, 1 Hill (S. C.), 79; 4 J. J. Marshall, 244. It may be said that allowing interest on this judgment is contrary to the earlier English decisions, which only allowed it on the ground of contract. If one is curious to examine those authorities, and see how utterly unsatisfactory they are upon the subject of interest, he may read the learned opinion of Mr. Justice Oheves in Goddard ads. Bulow, 1 Nott & McCord, 45-58, where he reviews them as bearing upon the question *612whether interest may be recovered in an action for money had and received. The rule extracted by Mr. Justice Che ves from the law and practice of South Carolina is, that interest is recoverable, either according to the contract or in damages, in all cases of certain or liquidated demands, from the time they are legally due and payable ; and in all other cases in the nature of debt, where by custom or agreement interest is payable, or in which the demand has been vexatiously or oppressively withheld. It is true, these observations were made in respect to allowing interest in an action for money had and received. The reason and principle of the rule are, however, strictly applicable to the point we are considering ; and that is, whether interest should not be allowed on a judgment irrespective of the nature of the original cause of action, as damages for default of the debtor in withholding money which belonged to another. A majority of the court think it should be allowed, and we can see no substantial objection to the mode of computation laid down in the fourth and fifth special instructions asked by the defendant below, for determining the extent of the special property of the marshal in the goods taken from his possession by the writ of replevin.

We were referred to sec. 42, ch. 102, R. S. 1849 (now sec. 14, chap. 134 of the present revision), for the purpose of showing that interest could be collected on execution only where judgment had been rendered on contract or upon a prior judgment. The interpretation put upon a like provision in Sayre v. Austin, supra, was, that it was not by virtue of such a statute that judgments bore interest, but that the intention of the act was to authorize its collection upon execution. If we are right in the view that the judgment of the district court draws interest, then in an action of debt upon it, the court and jury would have no discretion to allow or not to allow interest, but must assess a sum of money by way of damages equivalent to the interest. And as the law thus allows interest on the judgment, there would not seem to be any substantial objection to *613permitting tbe jury to take it into consideration when ascertaining tbe extent of tbe special property of tbe marshal, wbo stands in tbe place of tbe judgment creditor, and tbe damages be is entitled to recover for taking and withholding the goods from bis possession. See sec. 31, cbap. 132, R. S. 1858.

Tbe objection that tbe execution was not authorized by tbe laws of this state because it contained an attachment clause, is removed by reference to section 118, chap. 102, R. S. 1849.

The instruction asked by the plaintiff’s counsel, that the payment made by Blair to Arnold was to be treated as a payment in satisfaction of the judgment in the United States district court, was properly refused. — This court has already decided, in Pratt v. Donovan, 10 Wis., 378, that where judgment is rendered against a plaintiff in an action of replevin, tbe judgment may be entered up, as well against the principal as against tbe sureties wbo signed tbe undertaking. W e therefore do not feel called upon to enter upon a re-examination of that question at tbe present time.

Downer, J.

Tbe majority of tbe court are of opinion that interest should be given to tbe appellants on the judgment in their favor in an action of tort in the United States court, by way of damages. I differ from them on this point. There is some conflict of authority whether judgments on contracts at common law drew interest or not; but none as to judgments in actions of tort. No interest could be recovered on judgments in such actions. Tbe United States have by statute adopted the laws of tbe state as to interest on judgments ; and the only law of tbe state altering or modifying the common law is sec. 14, cbap. 134, R. S., which provides that “ whenever a judgment shall be rendered upon contract or upon any prior judgment, and execution shall be issued thereon, it shall be lawful to direct upon such execution tbe collection of interest,” &g. This expressly authorizes interest to be collected on judu-*614merits on contract and upon prior judgments, and is equivalent to an enactment that suck judgments draw interest; and by implication-expmsio unius exclusio alferms-prohibits interest on all others. I am aware that a directly contrary conclusion was drawn from the same or a similar statute in Klock v. Robinson, 22 Wend., 160. But it appears to me that case, so far as it decides, or gives an obiter dictum opinion, that interest may be recovered or collected on a judgment for damages in an action of tort, is mere,sheer judicial legislation, and ought not to be followed. The same may be said of other decisions following that or resting on the same or similar reasons. But it does not follow, even if the plaintiff in the judgment, in an action brought thereon, could recover interest by way of damages for its nonpayment, that the marshal has a right to recover it in this case. It is conceded that the indorsement on the .execution to collect interest was without the sanction or authority of law, and void, and that all the plaintiff in the execution had a right, by virtue thereof, to collect or cause to be collected, was the amount of the judgment without interest. All, therefore, that the plaintiff in such writ could rightfully demand or recover of Ableman, the marshal, was the amount due upon the judgment without interest thereon. And it is clear in this case that the appellant, having no right to recover exemplary damages, ought to recover just the amount to be by him paid to the plaintiff in the writ, Ms fees thereon, and costs in in this action, and no more. I know of no principle of law giving him the right to recover damages beyond his own liability; or if the suit is defended by the judgment creditor in the name of the marshal, giving such creditor a right to recover in the name of the marshal a sum greater than he could recover in a suit against the marshal. I am therefore of opinion that the judgment of the county court should be affirmed.

By the Court. — The judgment appealed from is reversed, and the cause is remanded for farther proceedings according to law.

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