
    Tennant’s Executor v. Gray.
    Decided March 22d, 1817.
    I. Bond witii Penalty— Principal and Interest "lore Than Penalty — Verdict, -Where the principal and interest, due on a Bond, amount to more than the penalty, and damages are found by a Verdict, Judgment ought not to be entered for the penalty and costs, to be discharged by the principal and interest, with the damages so assessed and the Costs; but for the penalty and damages, if not exceeding those laid in the Writ.
    2. Same — Same-Same—Damages Greater Than Laid in Writ — New Trial. — But if the damages found by the Jury exceed those in the Writ, a new trial ought to be granted, unless the plaintiff will release the excess of damages; if which be done, Judgment may be entered for the penalty, with the residue of the damages so found, and costs. See Atwell’s Adm’rs v. Towles, 1 Munf. 175.
    This was an action of debt upon a Bond, dated July 3d, 1789, for 1501. 9s. 9d. to be discharged by the payment of 761. 4s. 10R¡d. on demand. The Writ was issued on the 24th day of March, 1806, returnable to the District Court of Fredericksburg. The damages stated in the Writ were 201. The declaration was in the usual form, but leaving the damages blank.
    On the 17th of October, 1815, a Verdict was found for the plaintiff, for the debt in the declaration mentioned, and 221. 17s. Od. in damages. Judgment was entered “for 1501. 9s. 9d. the debt in the declaration mentioned, together with the damages aforesaid in form aforesaid assessed, and Costs; to be discharged by the payment of 761. 4s. lOj^d. with interest *thereon, after the rate of five per centum per annum, to be computed from the 3d day of July, 1789, ’till paid, and the Costs and damages aforesaid.”
    The defendant obtained a Writ of Super-sedeas from a Judge of this Court.
    
      
       Bond with Penalty — Interest beyond Penalty as Damages. — Tn Baker v. Morris, 10 Leigh 285, 311, on the authority of the principal case, it was held that in an action of debt on a. bond, the surplus interest beyond the penalty may be given in the form of damages. To the same effect, the principal case is cited iu Taze well v. Saunders, 13 Gratt. 367. In this case (Tazewell v. Saunders) it was held that courts of equity will decree interest upod a bond or judgment beyond the penalty, against the principal debtor. Judge Moncube delivering the opinion of the court, said (p. 367): “In this state. Tenant v. Gray, 5 Munf. 494, is admitted to be an express authority in favor of the right at law to recover interest beyond the penalty in the shape of damages. That was a unanimous decision of the court, and it is believed has ever since been regarded as having settled the law of this state; which is an answer to the objection that it stands asa solitary case. If solitary, it is because it has never been questioned.”
    
   March 22d, 1817, the President pronounced the Court’s opinion, that the Judgment was erroneous, in this, that it gave damages exceeding those laid in the Writ; and also in this, that, as the principal and interest exceeded the penalty of the Bond, the Judgment ought to have been for the penalty, and damages, not exceeding those in the Writ.

Judgment reversed; Verdict set aside; ■and cause remanded for a new trial, to be had therein, unless the plaintiff would release the excess of damages beyond those laid in the Writ; in which event, Judgment was directed to be entered for the debt in the declaration mentioned, and the residue of said damages and costs.  