considered as a penalty, and relievable against | considered as a penalty, against which a in a Court of Equity, upon compensation being made; and that compensation is legal interest, unless some specific damage can be shewn.

court of equity ought to relieve, upon compensation being made.

120

own

That compensation-in case the condition This was a suit brought by the appellee, unless some specific damage be shewn, be for payment of money—is legal interest; in the High Court of Chancery, to be relieved against a judgment for £50, which which may induce the Chancellor to direct by an award of arbitrators (made under a a jury to assess the quantum of it. rule of court) he had been adjudged to ties to which he was subjected, but of no In this case, Winslow speaks of difficulpay with interest;-insisting that the £50 which particular injury sustained, was only intended as a penalty to enforce could entitle him to a compensation the punctual payment of £100, or to compel the appellee, in lieu thereof, to take up the beyond legal interest: so that upon his statement of the case, Groves and appellant's bond to one Garret, for that Graves would be a sum, and which he was prevented from direct authority in doing by the appellant himself; *and affirmance of the decree. But take the praying an injunction against judg: For since Dawson might have performed case either way, there is no difficulty in it. ment rendered upon the award. The bill states and the depositions prove, that the What was required of him in order to save memorandum was torn from the bond at the the forfeiture, by taking up the bond to time the case was before the arbitrators, Garret by the 10th of February 1784, and that the abitrators refused to hear the appel-slow himself from doing so, that ought in was prevented by the interposition of Winlee's witnesses, but permitted a statement to be read by the appellant's counsel of facts equity to be considered as done, and the controverted by the appellee. penalty of course relieved against.

119

which were
The answer states: that the defendant

erly decreed, since the appellee appears to
have tendered to the appellant, before the
than was due at that time.
institution of the suit at law, more money

But, as the injunction is made perpetual agreed to sell a tract of land to the plain- for £3: 12: 8: more than ought to have been tiff, and to receive payment in any one of injoined, the decree must be reversed with the three following modes, 1st, 200 in costs, and the injunction dissolved as to hand, or 2d, £250 in twelve months, or 3d, so much, and stand for the residue of the £300 upon a longer credit. That the plain-sum, and the costs at law, which were proptiff acceded to the first proposition, if credit for a few months were allowed; and if not punctually paid, then, that the second prop osition should prevail. This being agreed to by the defendant, two bonds were executed, one for the payment of £100 at the time last mentioned, and another for £150 in twelve months after:-but, to the latter bond, a memorandum was annexed, that it might be discharged by the payment of £100 by a certain time, sooner than that mentioned in the condition.

The Chancellor decreed a perpetual injunction, and the costs at law to the complainant. From which decree the defendant in equity appealed.

The PRESIDENT delivered the opinion of the court.

Taking the case to have been as stated by Winslow in his answer, the insertion of the £50 must be considered, either as a consideration for forbearance and of course within the act of usury, or as a penalty, for which a compensation may be made, and therefore relievable against in a court of equity: for he admits, that the first proposition for £200 was acceded to, and adopted as the agreement between the parties.

Ross v. Poythress.

October Term, 1792.

Custody of Debtor-Injunction*-Effect. If a debtor in execution obtain an injunction, the Sheriff is bound to discharge him from custody.

Seisure of Property under Fi. Fa.—Injunction-EffectQuære. If an injunction be obtained after seisure of property, under a fieri facias, the officer may restore the property.

This was an action of debt brought by the appellant in the District Court of Petersburg, upon a prison bounds bond; the breach assigned in the declaration, is nearly in the words of the condition of the bond, with an averment, that the prisoner did depart and escape from the bounds, without being discharged by due course of

law.

Pleas, 1st, Conditions performed. 2d, That the bond was given to the sheriff for and concerning a matter relating to his office, whilst the defendant was in custody The case of Groves and Graves, in this of the said sheriff; contrary to the act court, has decided this principle: viz, that entitled an act "prescribing the method of such a contract to pay a larger sum at a appointing sheriffs, and for limiting the future day, upon non-payment of the sum time of their continuance in office, and diagreed upon, at a prior day, is not usuri-recting their duty therein."-Issue ous; but that the increased sum shall be Graves, 1 Wash. 1; Campbell v. Shields, 6 Leigh 520;

Muhleman v. Nat. Ins. Co., 6 W. Va. 523.

See same case, Wythe 114; also, monographic note on "Usury" appended to Coffman & Bruffy v. Miller, 26 Gratt. 698.

was

taken upon the first plea, and liberty reserved to the plaintiff to file his demurrer to the 2d plea, at the next court, if he please.

*See monographic note on "Injunctions" appended to Claytor v. Anthony, 15 Gratt. 518.

to

The jury found a verdict for the plaintiff : | the year 1777, Ch. 15, 31, seems but if, in the opinion of the Court, a sub- give to injunctions, merely the power of poena of injunction issued from the High staying executions. It neither authorises Court of Chancery, and delivered to the the discharge of the person, or property sheriff having the prisoner in custody, and already taken in execution, nor does such served on the plaintiff's attorney, whereby an effect follow, as a necessary or reasonthe judgment, on which an execution had able consequence, from the order. issued, under which the defendant was consigned, was injoined, was a sufficient authority to the sheriff to discharge 121 him from custody under *that execution, then they found for the defendant. No notice was taken of the second plea.

Judgment for the defendant upon the special verdict in the District Court, and appeal to this.

Ronold for the appellant.

Until a final decree was rendered for the plaintiff in equity, the injunction granted by the Chancellor could not operate, so as to deprive the plaintiff at law, of a right already vested in him. The lands of a defendant, are actually bound from the time . a judgment is rendered against him; as are also his chattels, from the time a writ of fieri facias is delivered to the sheriff.

If the whole effect of the execution be done away by the granting of the injunction, I am at a lost to know, what return the sheriff can make upon the execution, or in what manner, the plaintiff is to proceed upon the dissolution of the injunction.

Marshall for the appellee. The cases read by Mr. Ronold, only prove that there are certain rules observed by the Chancellor in England, which neither are, nor ought to be guides for us, and this necessary departure from those rules, results from the very nature of our situation, compared with that country. In that, much of the wealth of the nation consists in money; it is easily procured by those who can secure the repayment of it; therefore no inconvenience can follow from requiring a deposit of the debt recovered at law, as the condition of granting an injunction. So too, nothing can stop the progress of an execution once served. Yet even there, we find that in some instances this rigid rule is dispensed with, as the cases referred to by Mr. Ronold prove. In this country, the wealth of the people consists principally in real property-there is so much of that, and so little money at market, that the latter cannot be procured on loan, with any security.

This difference, will furnish a strong argument, why the rule in England, even in case of executions against the property, should not prevail here; and the argument is fortified considerably, if we view the case by analogy to forthcoming and replevy bonds, which are unknown in that country, yet induced by necessity to be authorized in this. In these cases, the lien is entirely gone, and a compensation for it, provided in the security given by the debtor.

It would be highly unreasonable to give to an injunction, an effect so extensive, as that which must be contended for. The principal, as well as his securities, might remove or become insolvent, pending the injunction. The estate seized by the sheriff on a writ of fieri facias, might during that time perish, and thus, might the plaintiff at law lose entirely the effect of his judgment. Injunctions are not authorised, or in any manner regulated, by the laws of this country, and therefore we must resort to the rules observed in the courts of England. There, the money is always brought into court by the party obtaining the injunction, unless, in special cases, it is dispensed with, 2 Harr. Ch. Prac. 224, 226. So if goods are taken on execution, or money levied, or paid in execution, and in the sheriff's hands, the process of injunction will stay them there, Ib. 225. Upon the same principle it is, that a bill of review does not prevent the execution of the decree impeached; but obedience is actually to be paid to the decree, as far as it can, without prejudice to the right of the party preferring the bill. 1 Harr. Ch. Prac. 171. Neither does a supersedeas set aside the execution, or stop the sale of the property seized under it. Dalt. Sheriff. 225-534. A capias, not executed, is arrested by a supersedeas; but if executed, the body must be returned with the supersedeas. Neither will an action for false imprisonment lie, if the body be taken on a ca. sa. without notice of the writ of error. If then, we are 123 to take as our guide, the rules and principles of the English law, (and we have none other to follow,) we find, that an execution once served, is not interrupted by an injunction, or other proceedings subsequent to the judgment, until the debt is levied, or received by the officer, and is then only stopped in his hands.

So too in England, if goods be taken by way of distress, and replevied, the distrainor loses his lien on the goods, and is left to his remedy on the replevy bond, Brow Ch. Rep. 427: so that the lost of the lien upon property once seized, is not unknown even in England, much less in this country.

But the case of an execution against the body, is much stronger than if it were against the property. For if the body might still be kept in confinement, the injunction would be an idle and vain thing; since the plaintiff, if entitled to equity, might receive the same benefit from an

original bill, as he could by obtaining *the injunction. The plaintiff at law cannot complain with reason, since his security is certainly bettered.

Mr. Ronold in reply. The act of 1791 Ch. 3, 3, tho' it was made subsequent to this transaction, shews, from the manner in which it is expressed, the sense of the legislature upon this subject, by directing that the sheriff, having received money under an execution, shall, upon an injunction

being granted, repay, the money to the
plaintiff in equity. But this was unneces- 124
sary, if, before the law was made, an injunc-
tion produced the extensive effect now sion
contended for.

The PRESIDENT. We shall give no positive opinion, as to the effect of an in-judges, stating: That the defendant's counjunction obtained upon an execution against the goods and chattels, after seizure; as that case is not before us: probably it would be considered as settled by the act of 1791, which directing a restitution of the money levied, would seem to include inferior cases, and to extend, by an equitable construction, to the restitution of goods seized in execution, and not sold.

I WASH.

THOMPSON, APPELLANT v. DAVENPORT, &C., APPELLEES.

126-127

gage, or an absolute purchase, a Court of Equity | James the elder, is a brother to David; has governs itself by the intention of the parties: been and if the former appears to have been intended, the Court will not suffer it to be turned into a 126 purchase by any form of words, so as to preclude a redemption.

Same-Same-Governing Principles.-The deed in this case is in aspect, form, and expense, a mortgage. -No price was contemplated or agreed upon;-the grantor retained the possession, and there is a covenant for payment of the money: and though interest is not mentioned, yet the principal debt being payable on demand, it bore interest from the date. In the case of a purchase, the vendee takes possession, in lieu of interest, and if there be a condition to re-purchase, it is done on payment of the principal only, unless the contrary is stipulated.

Payments-Application—Judgments-Relief against.—

In what manner payments are to be applied.-On a bill to be relieved against a judgment at law, if the relief is granted in part only, the defendant is entitled to his costs at law, and must pay the costs

in equity.

This was an appeal from a decree of the High Court of Chancery. The bill was filed by the appellees, to be relieved against a judgment at law, on a bond payable the 2d of March 1784, executed by the appellees for 113: 16: 4, being the amount of a tract of land, mortgaged by a certain David Davenport to the appellant, to secure a debt of £40: 18: 7, with interest from the 19th of August 1756, and sold under a decree of the County Court of Hanover, and purchased by the appellee James the younger, for whom the other appellee was security.

a near neighbor to the defendant, ever since the purchase was made, and finally, that the price which *he gave for the land, was not more than the value of the equity of redemption.

The proofs in the cause, relate principally to Thompson's confessions, that the mortgage was paid off, and his silence at the sale. Amongst the exhibits, is a letter from David Davenport to the court of Hanover, desiring a decree to be entered up, in the suit of Thompson against him, for the principal sum mentioned in the mortgage, and interest from the date, which he says is justly due. The account stated, and reported by the master, after crediting Davenport with all his payments, and debiting him with the posterior account of Thompson, down to the last payment made by Davenport, makes a balance of £29: 1: 3, due upon the mortgage in June 1762, and £31: 5: 7%, due for subsequent dealings. The court injoined the defendant, from proceeding to levy more of his judgment at law, than so much of £29: 1: 3, with interest from the 28th of June 1762, as shall remain, after deductions therefrom, of the costs expended by the plaintiffs, in their action at common law, and in the said High Court of Chancery.

The PRESIDENT delivered the opinion of the court.

confessions were made-the proof respecting his silence at the sale, is also very defective.

ther noticed, since we agree with the Chancellor on that ground.

The evidence of Mr. Thompson's confession, respecting the payment of the mortgage money, is loose and desultory; liable to the objections justly stated by the Chancellor, and to others also important; amongst The ground of equity is, that the mort- which, one is, that none of the witnesses gage had been paid off by David Daven-mention the time, or near it, when those port: that under a deed of trust, or power of attorney, from the said David, to Lewis and Ross, the land, had been long before the decree of Hanover Court, sold at public To sustain the decree so far as it goes, auction, and purchased by the appellee, the counsel, made several observations James Davenport, the elder, at £30, the ap-upon the evidence, which need not be furpellant being then present, and silent as to his title. That James the elder, paid the purchase money to Lewis, has been ever since in possession, and in 1779 received a conveyance from David Davenport for the land; so that James the younger, has had no benefit from his purchase under Thompson's decree, and ought therefore to be relieved against the payment of the money. Both grounds of equity are flatly denied by the answer. So far from the mortgage money having been paid off, the defendant states an account, commencing in December 1756, by which, after crediting the said David with every payment contended for, he makes him debtor £7: 5:4, over and above the mortgage money. The defend-127 ant insists, that the intention of the mortgage was to secure subsequent advances of money, or other things; and that the balance due, for posterior dealings, ought to be satisfied out of the mortgaged premises. He denies, that he concealed his incumbrance from the plaintiffs, but, that on the contrary, he disclosed it to them, on the day of Lewis and Ross's sale, that besides this,

The counsel for the appellees, upon this point, supposing that the evidence should be adjudged insufficient, to prove the mortgage to have been paid off, insisted, that no day of payment being mentioned, it was a conditional purchase, and not a mortgage; that Davenport might repurchase at any time, upon payment of principal without interest; which not being mentioned, cannot properly be demanded.

In questions, whether a deed should be considered as a mortgage, or an absolute purchase, chancellors have said, they would

govern themselves by the intention of

the parties; and *if the former appeared to have been intended, they would not suffer it to be changed into a purchase by any form of words, which might elude the justice of the Court, in permitting a redemption.

In aspect, form, and essence, this is a mortgage without a trait, indicating a purchase. No price for a purchase was contemplated, or discussed, as in a sale. The

vendor retains possession, which is uni-awarded against him, since the plaintiff formly the effect of a mortgage, and not of was relieved. a sale. There is also a covenant for payment of the money; and tho' interest is not mentioned, yet the principal debt was due on demand, and bore interest from the date, as in the common case of a bond.

In the case of a purchase, the vendee, has possession of the property, in lieu of interest, and therefore, if there be a condition to repurchase, it is done on payment of principal only, unless interest be expressly mentioned; because otherwise, the vendee would have double satisfaction, namely, interest, and the use of the land. But, in this case, Thompson has received no equivalent for interest, since Davenport retained the possession of the land. Upon the whole, it is clear, that this is a mortgage, and as such, is redeemable upon the common terms, of paying principal and interest.

The decree as also the first decree dismissing the bill with costs must be reversed with costs.

Hill & Braxton v. Southerland's
Executors.

October Term, 1792.

Payment-Application*-Duty of Creditor in Applying. -Although, if the debtor neglect to make the application at the time of payment. the election is cast upon the creditor, yet it is encumbent on the latter, in such a case, to make a recent application, by entries in his books or papers. and not to keep parties in suspense, changing their situation from time to time, as events should dictate. Equity Practice-Account-When Not Payment in Paper Money-Offset.-An account for goods not delivered, nor accepted as payment of a pre-existing debt, nor liquidated between the parties, ought not to be considered as a payment in paper money so as to stand at the nominal value according to the strict words of the Act of Assembly, respecting the scale of depreciation but as an offset to be adjusted, especially in equity, upon just principles. Paper Money-Scale of Depreciation.+--The legal scale of depreciation of 1777 and 1778. does not furnish a just rule, not corresponding with the general opinion of men, at the time it was made, as to the state of depreciation; nor does the scale, at any time, give a proper rule for fixing the price of imported goods.

But the decree, reducing the mortgage from £40: 18: 7 principal debt in 1756, to £29: 1: 3, principal in 1762, is complained of, by both of the parties. The appellant's counsel insisting, that since there was a running account between the parties, on the close of which, a balance was due to Thompson, there ought therefore, to be no deduction from the mortgage debt. On the other side it is insisted, that since payments were made subsequent to the mortgage, more than sufficient to discharge both principal and interest, they ought to be so applied, and the balance should be credited in Equity Practice-Account-Decree against Plaintiff

the account.

The rule as it respects the application of payments is agreed, but the question is, how it operates on the present case?

It is insisted, that the credits, are not to be considered as payments, but as forming so many items in a running account. Whether this would be the case or not, if the credits were mere matters of account, we will not now determine, as we understand, that it will be made a question in some other cause which is to come on.

But in this case, the credit in June 1762 of £80, which reduces the mortgage, is not of goods, or produce, so as to be a matter of account only; but was a payment 128 made in money, *or what was equivalent thereto, by two orders on Jackson and Crenshaw.

After the account was paid off, to that time, there was no choice of application, there being no debt but the mortgage.

The decree therefore is right, so far as it respects the balance due, but is defective, in not decreeing a conveyance, and disposing of the surplus.

As to the costs in Hanover, and the District Courts; whether it proceeded from a difference in opinion between the Chancellor and this court, or that it was not attended to by him, we cannot say; we rather suppose the latter, since we cannot discover any ground for making the defendant pay those costs; since he was certainly entitled to a considerable balance, and was pursuing regular methods to recover it. The costs in the Court of Chancery, were properly

for Balance.-Upon a bill for an account, if a balance be found against the plaintiff, the Court will decree against him for the amount.

The appellant Hill, with two others, were endorsers of a bill of Exchange, drawn by Braxton in favor of Southerland, which returned protested. The parties, having agreed upon the sum due by the said bill, in current money; the drawer and endorsers gave their note to Southerland on the 28th of February 1776, directed to the clerk of King William court, where a suit on the bill was pending, agreeing, to confess judgment for the amount due, (being at that time £778: 7: 4, at the exchange of 15 per cent.) with interest at the rate of five per centum per annum, from the 1st of June following. Southerland, held up this note until 1784, when without notice to any of the parties,

*Application of Payments.-On this question see the principal case cited in foot-note to Howard v. McCall. 21 Gratt. 205. See Hill v. Gregory, Wythe 73.

+Paper Money-Scale of Depreciation.-The principal case is cited in White v. Atkinson, 2 Wash. 99; Com. v. Beaumarchais, 3 Call 171: Dearing v. Rucker, 18 Gratt. 450.

#Equity Practice-Account-Decree in Favor of Defendant for Balance.-In Payne v. Graves, 5 Leigh 569. it is said: "Where a bill is brought for an account, and a balance reported in favor of the defendant. the court will decree in favor of the defendant for

that balance. Hill & Braxton v. Southerland, 1 Wash. 134; Fitzgerald, etc., v. Jones, 1 Munf. 150: Todd v. Bowyer, 1 Munf. 447." See also, citing the principal case, note to Spear v. Newell, 22 Fed. Cas. 906.