
    *Templeman v. Fauntleroy.
    June, 1825.
    Administrators — Suit against Guardian oí Decedent’s Widow. — It seems, that the executor or administrator of a husband who had survived his wife, but had never taken administration on her estate, may sue the guardian of the wife for her estate committed to him.
    Attachments — Absent Debtor — Decree between Debtor and Garnishee. — Where a foreign attachment is sued out, against an absent debtor and a resident garnishee, in a case equitable in its nature, it is competent to the Court of Chancery to decree between the debtor and the garnishee, what may be due from the latter to the former, after satisfying the claims of the plaintiff. But the evidence, in such case, must arise from the pleadings and proofs between plaintiff and defendant.
    Chancery Practice — Decree against One of Two Administrators. — A decree may be rendered against one only of two administrators, if it appear that one only has all the assets.
    Same — Order of Reference — Examination of Defendants on Oath — Effect.—A Court of Chancery may direct the reference of a case to a master, with authority to examine the defendants on oath; and such examination will have the effect of an answer.
    Executors — Decree against — De Bonis Propriis. — Where a balance is found in the hands of an executor or administrator, the decree should be de bonis propriis; and an acknowledgment of assets, with other circumstances, will have the same effect.
    Attachment — Payment of Interest by Garnishee.— Although a defendant is restrained from paying money, by attachment, he ought, nevertheless, to pay Interest, during the time he was so restrained, If be continues to hold the money.
    . The controversy between the appellant arid appellee in this Court, arose out of two suits in the Superior Court of Chancery of Fredericksburg, in which both of them were defendants.
    The bill, in one of those suits, was exhibited by James Webb, executor of Robert Jeffries, against Joseph Fauntleroy, administrator de bonis.non of Griffin M. Fauut-leroy, Thomas Jones and Elizabeth his wife, and Peter Northern. And it sets forth, that the plaintiff’s testator, Jeffries, married Elizabeth Chinn, daughter, co-dev-isee and co-legatee of Robert Chinn, deceased, and survived his said wife; that Griffin M. Fauntleroy was one of the executors of Robert Chinn, and the guardian of his daughter Elizabeth, and died without having settled the accounts of his guardianship, indebted to his ward, and leaving ample estate to satisfy the debt; that the executors of Griffin M. Fauntleroy, having died before they had completed the administration; administration de bonis | non of his estate, *with the will annexed, was granted to his son, Joseph Fauntleroy; to whose hands sufficient assets came to satisfy the plaintiff’s demand; that Joseph Fauntleroy, without settling his father’s guardian’s account, and paying the balance, divided the assets of his testator, Griffin M. Fauntleroy, among his legatees, (of whom Elizabeth, the wife of Thomas Jones, was one) and then removed from Virginia; and that Peter Northern was indebted to Joseph Fauntleroy in a sum sufficient to satisfy the plaintiff. The bill, therefore, • prays that Joseph Fauntleroy may render an account of his testator, Griffin M. Fauntleroy’s guardianship of Elizabeth Chinn, and that the balance found due thereon may be decreed to the plaintiff; that the property derived from Griffin M. Fauntleroy’s estate in the hands of Thomas Jones and wife, may, if necessary, be subjected to this debt; that the money cate from Peter Northern to Joseph Fauntleroy, may be attached in his hands, to answer the plaintiff’s demand; and general relief.
    In the other suit, the bill was exhibited by William Alderson and Nancy his wife, .against the same defendants; and sets forth, that the female plaintiff, Nancy, was another cdaughter, co-devisee and legatee of Robert Chinn; and that Griffin AT. Fauntleroy, the ■executor of her father, was also her guardian; and the allegations of this bill, in all ■other respects, and the prayer thereof, are in substance the same as those of the other bill above stated.
    Peter Northern, the garnishee, died before appearance; and both suits were regularly revived against Plenry L. Yeatman and Samuel Templeman, his administrators, by bills of revivor, calling on them to state the amount of the debt due from their intestate to Joseph Fauntleroy, the absent ■defendant.
    As to the defendants Jones and wife, both bills were regularly taken for confessed.
    The answer of the defendant, Joseph Fauntleroy, to the bill exhibited by Webb, ■executor of Jeffries, saving all exceptions to Webb’s right to sue for the choses *in action of his testator’s deceased ■wife, fairly puts in issue the matters of account alledged in the bill. His answer to the bill of Alderson and wife, puts in issue the matters of account therein al-ledged, without any objection to their right of action.
    The answers of Templeman and Yeatman, administrators of Northern, (the garnishee) to both the bills, are, mutatis mutandis, the same. They state, that their intestate died indebted to Joseph Fauntleroy, the absent defendant, as per account referred ,to; but a controversy had arisen concerning part of the land sold by Fauntleroy to Northern, which in its event might considerably reduce the debt: and that they were willing to render an account of the money really due, and to pay it according to the orders of the Court.
    The defendant Joseph Fauntleroy, was ordered in each suit respectively, to render accounts of his testator, Griffin M. Fauntleroy’s guardianship of Elizabeth Chinn, (Airs. Jeffries,) and of Nancy Chinn, (Mrs. Alderson.) The commissioner reported a balance of 521. 17, 1, with interest on 241. 0, 6, part thereof, from December 31, 1817, till paid, due from G. M. Fauntleroy’s estate to his ward, Mrs. Jeffries; and 141. 13, If4, with interest on 211. 15, 9%, part thereof, from the same date, due to his ward, Airs. Alderson. There being no exception to these reports, they were approved by the Court, and there is no dispute about them.
    The Court then (in both suits) ordered the defendant, Joseph Fauntleroy, to render an account of his administration of his testator, G. M. Fauntleroy’s estate; and directed the commissioner to ascertain and report the amount due by Northern’s estate to Joseph Fauntleroy, at the time the restraining order was served on his administrators, Yeatman and Templeman; and, for that purpose, authorised him to require those defendants to state the amount on oath.
    *The account of Joseph Fauntleroy’s administration of G. M. Fauut-leroy’s estate, was waived by the plaintiffs in both suits.
    The commissioner reports the balance due from Northern’s estate to Joseph Plauntleroy, at the date of the restraining order, to be $1815 68 cts. of which $1382 80 cts. is principal. The attachment bore date April 26, 1816, and was served on Yeatman, July 28, 1817, and on Templeman, August 5, 1817.
    In regard to this account, the commissioner reports: That Templeman did not attend at his office, but wrote him a letter desiring him to state specially, that the bonds for the sale of Northern’s personal estate; fell due December 9, 1812; and that the estate was settled by Yeatman, the acting administrator, and divided between Northern’s widow and children, together with the lands, including that purchased of Fauntleroy. That Yeatman did attend at the taking of the account; and being examined on oath, stated, that he had, in February or March, 1814, turned over to his co-administrator, Templeman, sundry bonds, taken for the proceeds of sales of his intestate’s personal estate, amounting to about $2000, to be applied to the satisfaction of Fauntleroy’s claim, and some small debts; that the joint answers filed in these causes for both administrators, (in which it is stated, that they are willing to pay the amount due to their co-defendant, Fauntleroy,) were prepared and filed by Templeman, and never seen by Yeatman till after they were filed; and that none of the assets of Northern’s estate remained in his (Yeatman’s) hands.
    No exceptions were taken to this report.
    April 24, 1820, Chancellor Green decreed, that the defendant, Joseph Fauntleroy, should pay to the plaintiff, Webb, executor of Jeffries, 52l. 17, 1, with 5 per cent, per annum interest on 241. 0, 6, part thereof, from January 1, 1818, and the costs of his suit; and to the plaintiffs Alderson and wife, 441. 13, iy2, with like interest on 211. 15, oy, part thereof, from the same date, and the costs *of their suit. And the plaintiffs consenting (in favor of Fauntleroy) to waive a decree for them against Templeman, the Court further decreed against the administrator, Templeman, alone, and de bonis propriis, that he should pay his co-defendant, Fauntleroy, $1815 68 cts. with 6 per cent, per annum interest on $1398 47 cts. from April 25, 1816, subject to a credit for his costs in the two suits.
    From this decree, Templeman appealed to this Court.
    Leigh, for the appellant.
    Stanard, for the appellee.
    June 18.
    
      
       Administrators. — See generally, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Attachments. — See monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
      Same — Equitable Claims. — Purely equitable claims as well as legal demands may be made the subject of foreign attachment. Moore v. Holt, 10 Gratt. 292, citing principal case as so holding.
    
    
      
       Chancery Practice — Decrees between Codefendants. —In whitlock v. Gordon, 1 Va. Dec. 251, Wingeield, P., delivering the opinion of the court, said; “In relation to decrees between codefendants, I understand the rule In Virginia to he the same as that laid down hy Lords Eldon and Redesdale in the house of lords, in the case of Ghanity v. Lord Dun-sany, 2 Sch. & Lef. 689. that ‘whenever a case is made out between the defendants by evidence arising from the pleading and proofs between the plaintiff and the defendants, a court of equity is entitled to make a decree between the defendants, and is bound to do so.’ ” McNiel v. Baird, 6 Munf. 316; Allen v. Morgan, 8 Gratt. 60; Morris v. Terrell, 2 Rand. 6; Munday v. Vawter, 3 Gratt. 518; Temple-man v. Fauntleroy, 3 Rand. 434.
      On the subject of decrees between codefendants, the principal case is also cited in Blair v. Thompson, 11 Gratt. 449. 451 : foot-note to Ould v. Myers, 23 Gratt. 383; foot-note to Allen v. Morgan. 8 Gratt. 60; Vance v. Evans. 11 W. Va. 370; Kent v. Chapman, 18 W. Va 502; Watson v. Wigginton, 28 W. Va. 567.
      See further, on this subject, foot-note to Blair v. Thompson. 11 Gratt. 442; foot-note to Glenn v. Clark, 21 Gratt. 35; monographic note on "Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
      § Interest Money Which Party Is Restrained from Paying. — The safe and sound doctrinéis, that if the party, though restrained from paying, holds and uses the money (and we must presume he uses, if he continues to hold it), he ought to pay interest, because the owner of the debt has a right to the interest; because money is worth its interest; and if the holder does not think so, he has always the privilege of bringing the money into court. Sharpe v. Rockwood, 78 Va. 34, quoting from the principal case. To the same effect the principal case is cited and quoted from with approval in Shipman v. Fletcher, 95 Va. 590. 29 S. E. Rep. 325; Childs v. Hurd, 32 W. Va. 117. 9 S. E. Rep. 382; Darby v. Gilligan, 37 W. Va. 69, 16 S. E. Rep. 511; Coda v. Thompson, 39 W. Va. 71, 19 S. E. Rep. 549.
    
    
      
      Judges Brooke and Green, absent, the latter of whom decided the case in the Court below.
    
   JUDGE CARR:

This controversy arose out of two suits in the Chancery Court. Webb, executor of Jeffries, filed a bill against Joseph Fauntleroy, administrator de bonis non of Griffin Fauntleroy, who had been the guardian of Elizabeth, the wife of Jeffries. The bill states, that Elizabeth inherited a considerable fortune from her father, Robert Chinn: that Griffin Fauntleroy, as her guardian, received her property: that Jeffries married her while an infant: that she died, and, subsequently, her husband also, without administering on her estate, and without any settlement of the guardianship: that Joseph Fauntleroy, the administrator, had removed from the State; and that one Northern, a resident, owed him a sum sufficient to discharge what would be found due from his intestate, as guardian. It prayed a settlement and decree. The other bill was filed by Alderson and his wife, she being another daughter of Robert Chinn, having the same guardian. It states the same case, makes the same parties, and prays the same relief. The suits were proceeded in jointly, as having but one object. Reports were taken and confirmed, both as to the guardian’s account, and the debt due from the resident defendant to the absentee. Northern *died in the progress of the suits, and they were renewed against his administrators, Yeat-man and Templeman. Finally, the'Court decreed against the absent defendant, Fauntleroy, 52l. 17, 1, in favor of the plaintiff, Webb; and against the said defendant, 44l. 13, 1½, in favor of Alderson and wife. In these decriees, all parties acquiesced; but the Court went on, and decreed, in favor of Fauntleroy against Templeman, one of Northern’s administrators, the sum of $1815 68 cts.; and it is from this decree that the appeal is taken.

The first point taken for the appellant in the argument, was, that Webb, as administrator of Jeffries, could not maintain this action, as Jeffries had never administered on his wife’s estate. This objection applies solely to the case of Webb. If we were, therefore, to say that'Webb could not sue, how would this affect the decree as to Al-derson and wife, or as to the appellant Templeman, which stands on ground wholly distinct? If it were necessary to decide the point, I should doubt, considerably, the correctness of the position taken by the appellant’s counsel; especially in such a case as this, where the feme married in her infancy, and there is no suggestion by the defendant of her having contracted debts; that being the only reason why a husband need, in any case, administer. Hendren v. Colgin, 4 Munf. 231. There is a direct and high authority, that the executor of the husband, who had not administered, may sue in equity. This is laid down by Lord Hardwicke, in Elliott v. Collier, reported in 1 Wils. 168; 3 Atk. 526, and 1 Ves. 15. The case is also mentioned as of authority, in 7 Johns. Ch. Rep. 229, and cited by Judge Tucker, in Chichester v. Vass, 1 Munf. 98, as authorising Vass’s administator, in that case, to sue.

But it is not necessary to decide this point, for the reason already given; and for the still more conclusive reason, that this appeal does not bring it before us. The question existed between Webb and Fauntleroy, and was settled by the Court of Chancery, in the decree between them, *frcm which there is no appeal. Webb is no party to the case before this Court. The appeal is taken by Tem-pleman, from the decree for Fauntleroy against him. The supersedeas which issued to stay proceedings, is limited expressly to the decree between them; leaving Webb’s decree in full force, which he might forthwith carry into execution.

The only questions which this record presents, relate to the decree between the co-defendants. Could the Court, in a case like this, of foreign attachment, render any decree between them? First, let us examine what kind of a proceeding this is. The statute speaks of it, as a “suit for relief in equity,” “by bill.” The defendant is to appear and give security for performing the decree. The Court are to take such proof as the complainant shall offer, &c. They may order the bill to be taken for confessed — make such order or decree as shall seem just, and enforce it by such means as have been heretofore used for enforcing decrees. These phrases certainly clothe it in the garb, and give it the features of a proceeding in equity; and yet we know that it is often applied to cases purely legal; as, if an absentee owes me a debt by bond, and has a debtor within the State, I may file a bill, and get a decree. In such case, if the absentee were to appear, I presume he might avail himself of any legal defence. And this seems to have been the opinion of the Federal Court, in Wilson v. Koontz, 7 Cranch. 202. That was an attachment in Chancery upon a note. The absentee appeared, gave security, and discharged the attached effects; and pleaded the statute of limitations. There was a replication and judgment for defendant. On the appeal it was objected that the plea alone was insufficient; there should have been an answer also, denying the debt. The Chief Justice says, that objection ought to have been made before issue; but he adds, “if it be a good objection in cases within the general jurisdiction of a Court of Equity, yet it is not valid in a case like the present, which is really a case at law between the present *parties.” I apprehend the correct rule, to be this, that when a case, purely legal, is the subject of a foreign attachment, it will be considered substantially a legal proceeding, and conducted on legal principles. But where, in its nature, the case properly belongs to a Court of Equity, all the equitable rules and principles will attach to, and govern it. If this be the correct standard, there can be no difficulty in assigning the case before us to its proper forum. It is emphatically a case for equity; a call by the representative of a ward, on the representative of a guardian, to render an account of the guardianship. If Fauntleroy had resided in Virginia, this must have been a suit in equity. Iiis removal certainly cannot make it less so; but that removal gives the plaintiffs a right to add the defendant Northern; and thus, incidentally, gives the Court cognizance of the debt said to be due from him to Fauntleroy. If, when Fauntleroy appeared, he had given security to perform the decree, the attachment would have been discharged, and the case have proceeded upon the subject of the guardianship alone. But no bond and security being given, the plaintiffs had a right still to retain the garnishee in Court; and the Court continued to have both the subjects before them. I think, therefore, we may call this a regular suit in equity, against both defendants, and subject to all equitable rules and principles.

That equity may decree between co-dc-fendants "is a jurisdiction,” (says Lord Redesdale, 2 Sch. & Lefr. 698) “long settled and acted on, and the constant practice of a Court of Equity; so much so, that it is unnecessary to state any case in its support.” In the same case (Chamley v. Dunsanny, &c. an appeal from Ireland to the House of Lords) Lord Eldon says, “It is said that a decree is made between defendants, and that such is contrary to the practice of a Court of Equity, because there cannot be a cross-examination between co-defendants. But, my Lords, where a case is made out between defendants, by evidence arising from pleadings and proofs between plaintiffs and defendants, *a Court of Equity is entitled to make a decree between defendants. Further, my Lords, a Court of Equity is bound to do so. The defendant chargeable, has a right to do so. The defendant chargeable, has a right to insist that he shall not be liable to be made a defendant, in another suit for the same matter, that may be then decided between himself and his co-defendant; and the co-defendant may insist, that he shall not be obliged to institute another suit, for a matter that may be then adjusted between the defendants. And if a Court of Equity refused so to decree, it would be good cause of appeal by either defendant.”

The general power, then, to decree between defendants, is clear, with this qualification, that the case must be made out by evidence arising from the pleadings and proofs between plaintiffs and defendants. Let us see whether the case was thus made out here.

The plaintiffs charged that Fauntleroy was indebted to them, — was an absentee,— and that Northern was indebted to Fauntleroy. They called on the defendants to answer the allegations of the bills. Fauntleroy answers as to the guardianship, putting that matter in issue. The administrators of Northern answer, confessing that their intestate owed money to Fauntleroy; that the amount would depend, in some degree, on a contest about a part, of the land: that they are willing to accourrl and pay, as they shall be ordered. Could’ the Court have decreed against the administrators, upon this answer, the amount due from Fauntleroy to the plaintiffs? Certainly not. They do not state the sum due: they say it is uncertain, and that they are willing to account. Here then, the pleadings between the plaintiffs and these administrators, rendered it necessary to order an account, to ascertain how much their intestate owed Fauntleroy. If, when the case was before the commissioner, the administrators had come in and said, “we do not wish to descend to particulars, but we acknowledge before you, that our intestate owes Fauntleroy ^enough to discharge the claims of the plaintiffs;” the commissioner might have reported this fact generally. But instead of that, the administrators themselves furnish to the commissioner, from the books of their intestate, every item, on which his report, ascertaining their debt to Fauntleroy, is founded. He reports that debt to be $1815 68 cts. There is no exception to this report. Indeed there could not be. Thus is the case between the defendants fully made out, by evidence arising from the pleadings and proofs between plaintiffs and defendants. If it had happened that the debts established by the plaintiffs against Fauntleroy, had been equal to the debt found due from Northern’s estate to Fauntleroy, there would have been, there could have been, no objection to a decree against, the abministrators for. the whole debt. And can it make any difference to them, whether they are decreed to pay this debt to the plaintiffs, or to Fauntleroy. A payment to either, will equally discharge the debt. Are - they not, in duty to the estate, bound to insist, that an end shall be made of the matter in this suit: that the debt being ascertained, and the expenses of a suit inctirred, there shall be a decree for the whole, and not for so much only, as may be found due from Fauntleroy to the plaintiffs; leaving the estate of their intestate liable to be harassed and wasted by the costs of another suit, by Fauntleroy, for the balance due him? And ought the Court to leave for fui tire litigation, a matter thus fully and fairly settled? The case seems to me to be directly within the principle so strongly laid down by Lord Eldon.

It is objected next, that this is a decree, not only between eo-defendants, but also between the administrators of Northern.. 1 do not consider this a decree for one of those administrators against the other. In every decree against executors and administrators, the Court will be governed by the amount of assets in the hands of each. Tf it shall appear that one administrator has all the assets, the decree will be against him, for he has the fund. *'Whether, in this case, the Court were justified in rendering a decree for the whole debt, against Templeman, we will proceed to enquire.

The answer purports to be the joint answer of the administrators; but we find it sworn to by Templeman alone. It acknowledges assets, a willingness to pay the debt really due, and to account. In the order of reference to the master, to ascertain what sum the administrators owed Fauntleroy, when the restraining order was served, he. is authorised to examine them on oath. It is a rule of equity, long and well settled, that in a reference to a master, the Court may direct the examination of the parties on oath. Cowslade v. Cornish, 2 Ves. 270; Kirkpatrick v. Love, Ambl. 589; 3 P. Wms. 288; Purcel v. M’Namara, 17 Ves. 439; Hart v. Ten Eyck, 3 Johns. Ch. Rep. 513. The practice is founded in that pervading principle and distinctive feature of equity, an appeal to the conscience of the party. “Every defendant,” (says Chancellor Kent, ubi supra,) “notwithstanding his interest, must, in. the first place, answer the bill; and, having thus answered as a party, it is said that he shall not be examined in chief, in the character of a mere-witness. But when a reference is ordered upon hearing, then the enquiry becomes necessarily minute, and a new and more detailed investigation is opened, to which the general enquiries in the bill, are not adapted. Here the same policy and principles of the Court, which required an .answer to the bill, apply, and call again upon the conscience of the party, as party, for a further disclosure, adapted to the minutiae of the enquiry. • The same reasons which required an answer in the first instance, require an examination in the second.” In these remarks, I entirely concur. A reference in such cases, with the order for examining the defendant, has the effect of a supplemental bill of discovery, and the. examination, the effect, (I conceive,) of an answer to t-hat bill. - Standing on the same ground, it must be governed by the same rules. If, where it makes against *the defendant, it is evidence; where it makes in his favor, he may avail himself of it. Recollecting these positions, let us look at the proceedings of the master, under the order for examining the administrators. He gave them notice of the order, and repeated notices to attend at his -office. Templeman never would attend; though in his letter, he acknowledges notice. This was a contempt of the order of Court; and, taken in connexion with his answer acknowledging assets, and his letter speaking of the bonds, authorises the conclusion strongly, that he refused to attend from a consciousness that he must, on oath, have stated before the commissioner, that the assets were in his hands. Yeatman, under the notice to him, attended and submitted to be examined. In his answers to the different interrogatories put, he stated the amount due to Fauntleroy, as taken from Northern’s books; and also, the following facts: that the estate of Northern was settled, and the settlement returned to Court, prior to 1814: that in this settlement, there was reserved about $2000 in bonds, to meet this debt of Fauntleroy’s, the bonds being those taken by the administrators, oh the sale of the personal estate: that being about to remove to Fauquier in 1814, he turned over all these funds to his co-administrator: that at the service of the restraining order, he had not in his hands any of the funds, nor has he had at any time since: that the answer, purporting to be joint, was filed by Templeman alone, after his removal, and had never been seen by him, till the day before his examination. Upon the principles laid down, I think the Court below were authorised, from these facts, to conclude that the answer was the sole answer of Templeman; and that Yeatman had none of the assets in his hands, at the service of the restraining order. The decree, therefore, was rightly made against Templeman alone.

But, were the Court right in decreeing de bonis propriis? Clearly, I think. It is a settled rule in equity, that wherever a balance is found in the hands of an executor *or administrator, the decree shall be de bonis propriis; and in Moore’s ex’x. v. Ferguson and al. 2 Munf. 421, and Sheppard’s ex’r. v. Starke, 3 Munf. 29, the decrees were reversed, because, under such circumstances, they were de bonis testatoris. Now, here Templeman acknowledges assets. The bonds had been due eight years, were taken to the administrators themselves, no suggestion that any of them had failed or were uncollected; but an unqualified admission of assets, and a readiness to pay, when ordered. Surely this was equal to a report, stating assets.

It was said that this acknowledgment of assets by Templeman, was an admission that he had assets to pay the demands of the plaintiffs, not the whole debt, of Fauntleroy. But this is a palpable mistake. The answer was filed in 1815, and the report of the commissioner, stating the balances due the plaintiffs, was not taken until 1818, and before this report, it was perfectiy uncertain what those balances would be, as they depended on the settlement of two guardianships. Besides, the answer expressly states, that with respect to the debt from Fauntleroy, they know nothing. It also confesses, that there is a debt due from the estate to Fauntleroy, and that they are willing to account and pay it; referring necessarily to this debt.

The last objection to the decree is', that it gives interest, while the money was staid in the party^s hands, and it would have been a contempt to have paid it out. I have examined the case of Tazewell’s ex’r. v. Barrett & Co. 4 Hen. & Munf. 259, and think the principle decided there, directly applicable to the present Question. Tazewell owed money to Bland, by bond. He was served with a subpeena on behalf of Bland’s executors, attaching this money in his hands. After this service, he received notice that the bond had been assigned. An order of Court was subsequently served on him, to restrain him from paying the money, till further order. It was 5 or 6 *years before this order was discharged; and in a suit by the assignees of the bond, the question was, whether, during this time, Tazewell should pay interest. The Court decided that he should. Judge Roane considered the principle as settled by Hunter v. Spotswood, 1 Wash. 145, where a sheriff sold attached effects, under an order of Court, directing him to, pay the money to Hunter, on his giving security; which he failing to do, the money remained, and, it is said, died in the sheriff’s hands by depreciation. Yet he was decreed .to pay interest. In all such cases, I think the safe and sound doctrine is, that if the party, though restrained from paying, holds and uses the money, (and we must presume he uses, if he continues to hold it,) he ought to pay interest; because the owner of the débt has a right to the interest; because money is worth its interest; and if the holder does not think so, he has always the privilege of bringing the money into Court; and because, if the debtor could, under this restraining' process, hold the debt lor years, without interest, it would offer a strong temptation to him, to stir up claims of this kind, and to throw all possible obstacles in the way oí a decision of the questions raised.

JUDGES COALTER and CABELL, concurred, and the decree was affirmed.  