
    Gist vs. M‘Guire.
    In an action oft Mi mj u rustió» bond it appeared that a judgment was recovered at law in 1707 ibr a sum of money, (without interest) and costs. The injunction, which had been granted^ to stav proceedings on the judgment, was dissolved m Í803, anti the bill dismissed in 1805. A ,/?./«• issued on the judgment at law m 1803, and in 1803 and 1804 two payments were credited, which left a small balance due. On th is balance m-teiest was calculated from, the last payment to ISOu, wík-u a receipt for the sum then stated to bo due, in full of the judgment, was give»* by the plaintiff*» attorney before this acfioh was brought* The plaintiff claimed damages equal t® the in teres, t on the principal sum for which the judgment was rendered, during the time th<* judgments was enjoined — - Held, that he was entitled t» recerca
    Appear from Frederick County Court. This was an action brought on the 20th of January 1809, on a bond ex ecu ted on the 22d of December 1797, bv Thomas Samuel Pole, with Joshua Gist, (the defendant and now appellant,) and Upton Bruce, his sureties, conditioned that the said Pole prosecute an injunction obtained by him out of the court of chancery, to stay proceedings at law on a judg jnent obtained against him in the general court at October term 1797, by Boss M'Guire, (the plaintiff and now ap-pellee,) for JB3G0 current money, and costs. General performance pleaded. Replication, nonperformance, setting forth the proceedings in chancery, and assigning a breacli, &c. Rejoinder, payment. Surrejoinder, nonpayment, and issue joined.
    ' 1. At tile trial the plaintiff offered in evidence a recórd from the court of chancery, referred to and set out in the ■replication, being a copy of the proceedings on the injunction bill hied by Thomas S. Pole, administrator of Legli Master, against Boss M‘ Guire, stating, that on the 12th of July 1803, the chancellor dissolved the injunction, and that on the 28th of January 1805, the bill was dismissed. The defendant then offered in evidence, that a writ of fieri facias issued on the judgment mentioned in the said record, returnable to the general court at October term 1803, And further offered in evidence, by consent, the following receipt of W. T. T. Mason, Esq. the attorney for the plaintiff, and the statement of the said fieri fa»ias} VIZ».
    
      “October term 1803. No 154«
    
      liM. fa. Damages, ¿eáoo o o
    Costs, 22 8 71
    
    322 8 7b
    
    1803, Oct. 5th,paid pl’f?. ISO 1804, Dec, 1, paid do. 114 7 6
    244 7 6
    Bal. yet due pPff. 78 1 ];■
    Interest from 1st Dec. 1804 to' Feb. 17, 1808, 15 0 2
    93 1 31
    February 17, 1808. Received of Mr. James Cllarke, by the hands of Col. John M'- Pher son, the sum of ninety-three pounds one shilling and three pence, being the balance in full of a judgment obtained in the late general court by Boss M'Güira against Thos. S. Pole, adm’r. of Legh Master.
    
    
      Wm. T. T. Mason, Att’y. for Ross Quire.” He also proved, that the said balance was paid over to the plaintiff. The plaintiff admitted to the jury that the principal sum of money due on the judgment, and for which the fieri facias issued, was paid before the bringing this suit, but claimed damages equal to the interest on the principal sum for which the judgment was rendered, during, the time the judgment was enjoined. The defendant then prayed the direction of the court to the jury, that if they believe from the evidence that after the injunction on the judgment was dissolved, the plaintiff sued out a fieri faci-as on the judgment, and that he received the full amount of the judgment before the bringing of this suit on theinjunc-lion bond, that then the plaintiff is not now entitled to recover any interest on the said judgment as damages, during the time the plaintiff’was enjoined by the injunction, But the. Court, [Buchanan, Ch. J. and Shrivcr and Nelson, A. J. j refused to give the direction. The defendant excepted.
    2. The plaintiff also prayed the court to direct the jury, that upon the evidence aforesaid their verdict ought to- be for the plaintiff; and he further prayed the court to direct the jury, that if from the evidence they should be of opinion that the plaintiff was delayed in obtaining of the mo™ Bey recovered in the judgment against Tlmnas S. Pole, 
      far any period of time after the recovery had, and for which time he hath not, received any interest on the said money, and that such delay ot payment was occasioned by reason of (he suit in chancery of the said Pole, that then such delay of payment of the money, so recovered by tbe judgment against the said Pole, is a proper circumstance for the jury to take into consideration in assessing the damages for the plaintiff, notwithstanding he may, before the bringing of this suit, have, received all the money which he could have levied by execution on flip said judgment against the said Pole, and that the legal interest of the money, the,payment of which was so delayed, is a reasonable measure of the damages to be assessed by the jury. Which prayer the court granted, and directed the jury accordingly. The defendant excepted.
    S. The defendant then prayed the opinion of the court to the jury, that if the plaintiff had received any interest on the judgment aforesaid, subsequent to the dismissal of the bill, the same ought to be deducted out of any sum which may be allowed by the jury. But the court Refused to give the said direction. The defendant excepted; and the verdict anc| judgment being against hia», he appealed to this court.
    The cause was argued before Chase, Cb. J, and Nr-siiolson, Earle, and Johnson, J.
    
      Shuaff, for the Appellant, contended
    1. That no suit could be brought for interestj that if the principal debt had been extinguished, the damages consequent thereon were gone. 2. The court peremptorily direct the jury, as stated in the second bill of exceptions, to find for the plaintiff, without leaving it to the jury. There were two contradictory applications made for the court’s direction to the jury, and the court, on one of them, directed the jury to find for the plaintiff, and on the other left it to the jury. 3. The direction asked for in the third bill of exceptions ought to have been granted; for if any interest had beep- paid, (as nothing was claimed by the plaintiff but interest,) it surely ought to have been deducted by the jury. The original judgment in the general court was? on an award, and no interest was given. On the injunction bond to stay proceedings on that judgment, no interest could be recovered; The action ought to have been on the judgment. and then interest might have been recovered, if the princi-Pa* sura ',acl not been paid. On the fieri facias issued on ^le jui*Smen^> no interest could be claimed, and when this action was brought, more than the amount of the judgment had been satisfied. The plaintiff having waived his action of debt on the judgment, his right to recover interest was lost. He chose to lake a fieri facias on the judgment,under which the amount recovered was paid,
    No Counsel argued for the Appellee.
   The Couiit concurred in the opinions expressed by the County Court in all the bills of exceptions.

JUDGMENT AFFIRMED»  