
    *Garry Lewis v. Calvin G. Sutliff and Milton Sutliff.
    Where an injunction to a judgment at law, for the payment of money, is dissolved, the bill continued, and sundry payments made before its final dismissal, the decree is to be for the balance due at the time of dismissal,, with the legal penalty of damages upon that balance.
    This cause was reserved in the county of Trumbull, and came-before the court upon the following facts :
    At the November term, a. d. 1835, in Trumbull county, CalvinG. Sutliff obtained a judgment against complainant and one Matthew Acheson, for the sum of eleven hundred and twenty dollars debt, and one cent damages, with costs amounting to the sum of seven dollars forty-six and one-half cents, together on a judgment bond; and on April 23, a. d. 1836, Lewis filed the present bill in chancery against the defendants in the court of common pleas, and obtained an injunction on the judgment at law, for the reasons set forth in said bill.
    On April 28, 1836, the defendants filed their answer, and at the-April term, 1836, the court dissolved the injunction on the judgment at law, and continued the canse until the next Jane term. At the June term the cause was continued until the November-term, 1836. That on June 29, a. d. 1836, Lewis and Acheson paid to Calvin G. Sutliff, on the judgment at law, the sum of nine hundred dollars, and on October 20, 1836, Lewis paid the further sum of one hundred and thirty-three dollars; all which appears on the-execution docket of the court. At the November term of the court this bill was dismissed, and the court decreed that Calvin G. Sutliff should recover of the complainant the debt, damages, and costs recovered in the suit at law, with interest thereon up to the time of the dissolution of the injunction, in all amounting to the sum-of eleven hundred and fifty-seven dollars fifty-three cents, with-interest on the same until date of the decree, and five per cent, penalty on the amount aforesaid, amounting to ninety-six dollars seventy-five cents, and the cost of this suit; and that execution issue thereon as on a judgment at law. To avoid which decree the complainant appealed to the Supreme Court; and at the August term of the Supreme Court, in Trumbull county, the cause came on, and the complainant, by his counsel, consented that this bilL of complaint might be dismissed, but objected to the rendition of any decree in the case except for the taxable costs in this suit. Whereupon the court reserved the cause for determination in the-court in bank, upon the following points, viz :
    1. Whether the respondent, Calvin G. Sutliff, is entitled to a decree in this suit for the judgment and costs in the suit at law, under the present state of facts, or not?
    2. Whether Calvin G. Sutliff, under the existing state of facts *and law, is entitled to any penalty, by a decree in this case, on the judgment at law, or not?
    W. L. Knight, for complainant.
    M. Suture, for respondents.
   Judge Grimke

delivered the opinion of the court:

Both of the questions presented in this case may be very shortly disposed of.

1. Is a party holding a judgment at law stayed by injunction»who, pending the bill, receives the largest portion of his debt, entitled to a decree for the whole amount? Where the injunction is dissolved, the statute makes it the duty of the court to render a-decree for the respondent, for the amount of the judgment recovered at law. But this is in contemplation of a dissolution of the-injunction and dismissal of the bill at the same time. It would then be proper, and would be the only correct course to render a. decree of that kind. It would perhaps have been the better practice under this law, if a decree had always been considered as superseding the judgment, instead of permitting the decree and the-judgment both to remain in force. As the whole jurisdiction is-drawn to a court of chancery, the final decree in that court, settling the rights of the parties, and ascertaining the amount then due, might well be considered as vacating the judgment to the extent to which the decree reaches. But a different practice has prevailed, and we do not feel authorized to disturb it, inasmuch as no-injustice can arise from it. When the injunction is dissolved during-the pendency of the suit, full effect is necessarily given to the judgment at law. When a final decree is passed dismissing the bill,, if the judgment is then also continued in operation, the decree becomes simply accumulative security for the payment of the debt,, which can be but once collected. Here a large portion of the debt has been paid, pending the bill in chancery, and since the dissolution of the injunction. If the amount now due were ascertained, ■the decree would be for that amount only.

The second question is, whether the judgment creditor is entitled to a penalty, where the injunction is dissolved at one term, and the bill dismissed at another? And we are of opinion that he is so entitled. Chancery can not decree the penalty upon an interlocutory order dissolving the injunction. It can only be decreed on the final disposition of the case, and we hold that it is *then to be calculated only upon the sum found to be at that time due. This reconciles in the most just manner the pretensions of all the parties. By receiving payments on his judgment pending the bill, the creditor is held to have waived the penalty on the amount received. The case is sent back to the county to ascertain the amount -of payments. The decree will be for the balance due on the judgment, with the costs and accumulating interest; and also for the -costs in chancery, and a penalty on the balance found to be due.  