
    *Washington’s Ex’or v. Parks.
    July, 1835,
    Lewisburg.
    (Absent Bbooke and Gaum, J.)
    Injunction— Dissolution — Damages — Computation. — Upon the dissolution of an injunction on a judgment. the damages for retarding execution by the ini unction, should be computed on the aggregate of principal, interest and costs, appearing due on the judgment at the date of the injunction.
    Same — Same — Same —Same. — And the damages should be ascertained, and the precept to levy them inserted, in the body of the execution.
    Washington’s executor recovered judgment, in debt on a bond, against Parks, for 9000 dollars, the penalty of the bond, to be discharged by the payment of 3205 dollars with interest from the 12th July 1808, and 13 dollars costs. Parks filed a bill in equity for relief against the judgment, and obtained an injunction to stay proceedings upon it at law. The injunction was dated the 4th September 1825. It was not dissolved until the 26th November 1833. Washington’s executor, in March 1834, sued out of the circuit superiour court of Kanawha, a fieri facias on the judgment. The execution was, of course, for the penal sum of 9000 dollars and the 13 dollars costs; the clerk indorsing a memorandum upon it, that it was to be discharged by the payment of 3205 dollars, with interest from the 12th July 1808 until the 4th September 1825 (the date of the injunction), and from the 26th November 1833 (the date of the dissolution of the injunction) till paid, — and the 13 dollars costs, — and damages, at the rate of ten per cent, per annum, “on such sum as appeared to be due” including the 13 dollars costs, from the 4th September 1825 till the 26th November 1833, which damages accrued in consequence of the injunction obtained by Parks to stay execution of the judgment, which injunction had been dissolved — subject to a credit of 512 dollars, paid on *the 24th November 1828, which had been allowed by the chancellor. The clerk also appended to the execution, a calculation of the amount due upon it; in which, after allowing the credit of 512 dollars, he made the debt due on the 26th November 1833, amount to more than 12,000 dollars ; but this calculation was manifestly incorrect, since it allowed interest upon interest and on the damages, and double damages on part of the debt. The sheriff, in whose hands the execution was placed, made another calculation, in which, avoiding the errors of the clerk’s calculation, he computed the debt at something more than 9000 dollars. But in both the calculations, the amount of debt, principal, interest and costs, at the date of the injunction, was ascertained, and the damages were computed on the aggregate, for the time the injunction was pending.
    
      Whereupon, Parks moved the circuit su-periour court for a rule upon the plaintiff, to shew cause why the execution should not be quashed, 1. because, adopting either the clerk’s or the sheriff’s calculation, the amount to be levied on the execution, according to the memorandum indorsed thereon, exceeded the amount for which the execution on its face purported to be issued, and the penalty for which the judgment was rendered; 2. because the clerk’s memorandum on the execution, directed that the ten percent, per ann. damages should be computed “on such sum as appeared to be due,” — which was uncertain ; and 3. because it was illegal to compute the damages during the pendency of the injunction, on the interest accrued previous to the award of the injunction, as well as on the principal and costs. The court made the rule accordingly; and the plaintiff’s counsel acknowledged the service of it, and appeared to shew cause.
    The court discharged the rule; but being of opinion, that the clerk ought to have ascertained, and indorsed on the execution, the amount of the damages, which had accrued *on the sum that appeared to be due at the time the injunction was awarded, excluding the interest previously accrued, — it ordered the clerk to correct the indorsement before made bj' him, so as to state the ascertained amount of damages, and in doing, so, to compute the damages on the sum that appeared to be due at the date of the injunction, excluding the interest previously accrued, except so far as it should be necessary to compute the same in the process of ascertaining, with reference to the credit of 512 dollars, the amount of interest-bearing debt.
    Washington’s executor applied by petition to this court, for a supersedeas to the order; which was allowed.
    The cause was argued here, by Johnson for the plaintiff in error, and Summers for the defendant.
    I. The principal point of debate was the construction and effect of the statute 1 Rev. Code, ch. 66, $ 61, p. 209, which provides, that where an injunction to stay proceedings on a judgment at law, “shall be dissolved in whole or in part, damages at the rate of ten per centum per annum, from the time the injunction was awarded until the dissolution, shall be paid to the party on whose behalf the judgment shall be obtained, on such sum as appears to be due, including costs. ”
    Johnson said, that the sum “appearing to be due” on an interest-bearing judgment, was the aggregate of principal, interest and costs; and the damages for retarding the execution by an injunction, must be computed on the interest, as well as the principal and costs, due on the judgment at the time of awarding the injunction. And, he said, the practice had been universally and constantly in conformity with this construction.
    Summers said, that if such had been the practice, that could not make the law, if such was not the true construction and intent of the statute. And he entered into *an examination of the statutes concerning damages on dissolution of injunctions, damages on affirmance of judgments on appeals, and concerning the allowance of interest on contracts; and strenuously contended, that the ten per cent, damages for retarding execution by injunction, were given in lieu of the legal rate of interest on the principal, and that it was no more intended to give damages on interest which was itself damages, than to give interest on interest.
    II. Another question was, how the execution should issue for the damages in such case? Whether the damages should be computed, and the precept to levy them be included in the body of the execution? or whether the execution should direct the debt, interest and costs to be levied, with a memorandum indorsed, that the execution should be discharged by the debt, interest, costs and damages, giving the data for computing the damages as well as the interest, and the clerk making the computation to guide the sheriff, or leaving it to the sheriff to make the computation?
    
      
      See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   TUCKER, P.,

delivered the opinion of the court — That in the computation of the damages upon judgments, where execution thereof hath been stayed by injunction, the-computation should be made upon the aggregate amount of principal, interest and costs, appearing to be due at the time when the injunction took effect. That such damages ought regularly to be computed by the clerk, and included in the body of the execution : for, in the case of judgment on a penal bond, where the principal, interest, costs and damages will exceed the amount of the penalty for which the execution issues, the damages must of necessity be inserted in the execution itself, since otherwise the plaintiff must either lose the excess, or be driven to another action to recover it. That it was competent to the plaintiff, to demand that the execution in this case be quashed; but as he did not do so, *and as the error is favourable to the defendant in error, the court was right in discharging the rule which was granted on his motion. That though the calculation of the clerk appended to the execution is palpably erroneous, yet that that calculation was an unofficial act, neither binding upon the sheriff nor forming any rule for his government; and therefore, it was not necessary for the court to correct its errors. Therefore, that so much of the order of the circuit superiour court as discharged the rule made at Parks’s instance, should be affirmed, and as to all other matters the order should be reversed, with costs to the plaintiff in error.  