
    Hodges vs. Holeman.
    Motion.
    [Mr. Dana for the plaintiff: Messrs. Morehead & Brown for defendant.]
    Whether damages are to be adjudged upon the affirmance of a judg’t, or not, is a point not generally noticed in the opinion or minutes. But the clerk, in drawing out the orders, recurs to the record, and if he finds the case to he of that class in which damages are given, he shapes the mandate accordingly. It is his duty to enter the judg’t according to law; and there is no misprison in entering a mandate for damages, when the law requires it, without any special directions.
    The act giving damages upon certain judg’ts stayed by appeal or supersedeas, is not restricted in its application to judgments for gold or silver to judgments for Com’th’s paper, or any other sort of money that constitutes a common currency. The judg’t of the Circuit Court upon the mandate of the Court of appeals, will be understood (tho' not so expressed—but it would be safer to express it,) to be payable in the same currency as the principal judg’t—increasing the amount ten per ct. or one tenth. To judgments in detinue, the act (as has been decided) does not apply.
    
      This was an original motion in this Court, on behalf of the plaintiff in error in a case decided at the preceding term. The motion was reduced to writing, in the following form:
    The plaintiff moves the Court to amend the judgment entered in this case, on the last day of last term—by cancelling so much of the entry as pronounces, “that “ the defendant recover against the plaintiff ten per cent. “ damages on the amount of the judgment”—and thus make the judgment conform to the opinion and mandate delivered by the Judges, and the short note in the minute book, which together constitute the minutes.
    The judgment affirmed is in these words, following and referring to the verdict—“It is therefore considered “ by the Court, that the plaintiff recover against the “ defendant the sum of one thousand dollars in Commonwealth's “ Bank paper, the damages aforesaid by the jury “ aforesaid assessed, and also, his costs in this behalf “ expended.”
    The opinion delivered in this Court, affirming the judgment, concludes as follows:—“Upon the whole, there“fore, upon a careful scrutiny &c. we are satisfied, that “ judgment of the Circuit Court should be affirmed,” which sentence embraces all the mandatory part of the opinion.
    The minute is thus:—“Hodges vs. Holeman—aff’d—Absent Ch. Jus.”
    Neither saying a word, directly, nor by implication, about damages.
    The judgment drawn out from these minutes, is as follows:—“The Court being now sufficiently advised, it “ seems to them, that there is no error in the judgment. “ It is therefore considered by the Court, that the judgment “ of the Circuit Court be affirmed, and that the “ defendant recover against the plaintiff ten per cent. dam. “ ages on the amount of the judgment: which is ordered “ to be certified to said Court:—and it is further “ considered by the Court, that the defendant recover against “ the plaintiff his costs herein expended.”
   Upon the foregoing motion the Court (by

Chief Justice Robertson)

gave the following opinion:

First. The entry of the judgment for damages cannot be deemed a clerical misprison, merely because the' written opinion of this Court did not expressly direct such a judgment; for it is a common practice of the Court to say nothing in its opinions respecting damages or costs, leaving to the clerk, in those respects, the implied duty of entering the proper judgment according to law and the usage of the Court, under the sanction and control of the Court.

Second. The judgment for damages was, in our opinion right, and such as the law imperiously required. Paper of the Bank of the Commonwealth was not only a common currency, but, with one exception only, possessed every attribute of money or a medium of exchange. And besides, the statute, directing a judgment for ten per centum damages on the affirmance of a judgment which had been superseded, should not be restricted to judgments for gold or silver coin—but according to its letter, as well as presumed object, applies to all judgments in numero for any currency, upon which one tenth, or ten per centum—which is the same thing—could be added, in kind, to the judgment affirmed.

It does not, as has been decided, apply to a judgment in detinue, because, the thing recovered cannot be augmented by the addition of one tenth, or ten per centum, in kind.

But on affirming a suspended judgment for notes of the Bank of the Commonwealth—for example, for one thousand dollars—a judgment for damages at the rate of ten for each hundred in kind—that is for one hundred dollars in Commonwealth notes—would be literally a judgment for ten per centum, as damages. The judgment in this case is to be so understood, and is, therefore, that of the law.

The damages being adjudged on a judgment for Commonwealth’s paper, and being but an augmentation of that judgment, should be construed as being for the like paper—though it would be safer so to express it; and it is to be presumed that, under the mandate of this Court, to render a judgment for ten per cent, damages on the judgment for Commonwealth’s notes, the Circuit Court will enter the judgment expressly for such notes.  