
    *Laidley v. Merrifield.
    March, 1839,
    Richmond.
    (Absent Tucker, P. and Brooke. J.)
    Equity Practice — When Bill of Review Taken as a Supplemental Bill and Petition for Rehearing.  — A party against whom a decree interlocutory in its nature has been rendered, files a bill which he styles, and which is in form, a bill of review,.alleging errors on the face of the decree, as well as new facts in relation to the matter of controversy, and praying that the decree be reviewed and reversed: Held, notwithstanding the form of the bill, it shall be taken as a supplemental bill in nature of a bill of review and petition for a rehearing — dissentiente Carr, J.
    Covenant for Defence of Suit — Construction—Case at Bar. — A debtor executes a trust deed for securing the debt, and the trustee files a bill against him to enforce the deed; pending the suit, he engages a third person to defend it for him, and covenants, that if the suit be decided in his favour, or the bill be dismissed, he will give the covenantee a mortgage of the subject in controversy; the cause never comes to a hearing, but the bill is dismissed as to one of the trustees on his own motion, and as to the other by consent of his and defendant’s counsel: Held, this is a dismission within the terms and intent of the covenant, and the covenantee is entitled to his mortgage.
    Equity Practice — Payment of Part oi Debt — Receipt for Whole by Collusion — Effect.—By collusion with one of two administrators, a debtor to the estate of decedent pays a part of the debt, and procures a receipt for the whole, knowing that the other administrator is the sole acting and responsible representative: Held, though the receipt is no acquittance for the whole debt, equity will notwithstanding allow the debtor a credit for the payment actually made — dissentiente Carr, J.
    Interest — Allowed on Aggregate of Principal — Damages and Costs of Judgment. — Judgment is recovered for a principal debt, damages in lieu of interest, and costs, and the debtor executes a mortgage to ¡secure tile payment: on bill to foreclose tbe mortgage, the chancellor allows interest on the, aggregate of principal, damages and costs, from the date of the mortgage till payment: and this court affirms the decree, on appeal by the debtor— dissentiente Brockenbkough, J., who held, that interest should be allowed on the principal sum only, but might commence on that sum from the date of the judgment. ’ ; ; : :
    By indenture dated the 6th August 1788, T. Laidley conveyed to S. Hanway and F. Brooke, trustee, twelve *lots in Morgantown, and divers parcels of land, in trust to secure a debt of ^1400. due from Laidley to Reid & Ford of Philadelphia; and a bill was exhibited in the names of Hanway and Brooke the trustees against Laidley, in the superiour court of chancery of Richmond, to enforce the deed of trust, which was long pending there.
    While it was pending, namely, on the 8th March 1814, a covenant was entered into between Laidley and T. Wilson, whereby, —reciting the pendency of that suit, that Laidley had a just defence against the claim there asserted, but was unable ±o retain counsel in it and to defray the other expenses necessary to a successful defence, and that Wilson had undertaken to prepare his answer, and to give all aid as counsel which he could without leaving the county of his residence, — and reciting further, that Wilson, as attorney for several creditors of Laidley, had recovered several judgments against him, in which Wilson had an interest, namely, a judgment for one Kyger, another for one Bradford, and a third for Phoebe and Samuel Merrifield, — ’Laidley, therefore, agreed, that he would mortgage one seventh part of the lands and lots which he had mortgaged to Reid & Ford by the deed of trust to Hanway and Brooke, to secure compensation to Wilson for his services and expenses in defending that suit, and that he would out of the residue of that trust subject, pay off and discharge the three judgments of Wilson’s three clients, on reasonable notice after the suit of Han-way and Brooke against Laidley should be decided in his favour, or their bill against him should be dismissed; leaving Wilson at liberty, if he should think proper, to enforce the judgments of his clients against Laidley by execution.
    Wilson drew Laidley's answer to Hanway and Brooke’s bill, retained counsel to defend Laidley in the suit, and paid the clerk’s fees.
    At January term 1817, on the motion of Brooke, who stated that he had never acted as trustee under the deed *of trust of August 1788, and that the suit in his and Hanway’s name against Laidley, had been brought without his knowledge or consent, the chancellor dismissed the bill as to him; and, with the consent of the plaintiffs’ and Laidley’s counsel in court, dismissed the bill as to the other plaintiff also, but without costs. And Hanway declared, in 1817, that Reid & Ford, for whose benefit the suit had been brought, had never applied to him to renew it, and he believed never would, and he did not intend to renew it. In fact, it never ’ was renewed.
    Whereupon, in 1818, Wilson exhibited a ; bill against Laidley, in the superiour court ; of chancery of Clarksburg, setting forth the : covenant between him and Laidley; shewing that the bill of Hanway and Brooke : against Laidley had been dismissed; and praying that the covenant might be inforced as a mortgage of the subject therein mentioned, to satisfy what was due to Wilson, and to satisfy the three judgments of . Kyger, Bradford and Phoebe and Samuel Merrifield against Laidley.
    The judgment of the Merrifields against Laidley, was a judgment revived by scire facias in the county court of Monongalia at March term 1811, by Phoebe and Samuel Merrifield administrators of Richard Merri-field deceased, for 200 dollars (without running interest), 44 dollars damages (being the interest previously accrued), and 19 dollars costs.
    Laidley, in his answer to Wilson’s bill filed in 1819, said, that the intent of this covenant with Wilson of March 1814, was that he should mortgage the property, when the suit of Hanway and Brooke against him should be so decided i'n his favour, that it could not be renewed, so as to har-rass him with further controversy; but, in fact, the dismission of the bill in that suit was not founded on any decision of the chancellor, and was such that another suit on the same claim might be brought by Reid & Ford, or even by their trustees, at any time they pleased; and therefore Wilson was not *entitled to the relief he prayed. He acknowledged that Wilson had expended 70 dollars for him, but he said he had refunded the money to him : he had also discharged the debts due on the two judgments of Kyger and Bradford: and as to the judgment of the Merri-fields, it has been agreed between him and them, that he should convey a parcel of land to Samuel Merrifield in full satisfaction thereof.
    It appeared that, in fact, Laidley had discharged the debts due to Kyger and Bradford; and that, after Wilson’s bill ,was filed, he had also paid Wilson’s demand. After Laidley’s answer was put in, Wilson neglected the further prosecution of the suit; but it remained in court.
    In May 1823 Samuel Merrifield by leave of court filed a bill of interpleader, in which he alleged, that Laidley had satisfied the debts due to Wilson, Kyger and Bradford, but he had not paid or in any way satisfied the debt due to Merrifield’s administrators; that Laidley, however, had obtained a receipt from Phoebe Merrifield, the plaintiff’s co-administrator, for the full amount of the judgment, without paying her any thing of value; that that receipt was a fraud concerted between Phoebe Merrifield and Laid-ley, to deprive him (Samuel) of the benefit of the judgment; and that Wilson having no longer any interest in the suit he had brought against Laidley, had now no care to prosecute it. Therefore the bill prayed that Samuel Merrifield might be admitted a party plaintiff in that suit, to prosecute it for his own benefit, and at his own costs; and that Laidley, Wilson and Phoebe Mer-rifield, might be made parties to the bill of interpleader.
    As to Wilson and Phoebe Merrifield this bill was taken pro confesso.
    Laidley answered, that he had had a just claim against the estate of Richard Merri-field, the intestate of Phoebe and Samuel Merrifield, for ^20. for which Richard in his lifetime had agreed to give credit on his judgment ^against Laidley, which was afterwards revived by his administrators; in consideration of which, and of 70 dollars paid by him to Phoebe Merrifield on the 25th September 1822, she gave him a receipt in full against the judgment of Merrifield’s administrators against him; that the settlement was fairly made between him and her, and the 70 dollars was the just balance due on the judgment; and that Phoebe Merrifield, as one of the administrators of Richard, had full authority to make the settlement, allow the credit, receive the balance, and give an acquittance of the judgment.
    It was very clearly proved that Laidley paid Phoebe Merrifield only 70 dollars, and there was no proof that Laidley had any claim against her intestate’s estate: that Laidley told Phoebe Merrifield, that he had paid ail the debt but 70 dollars, to Wilson ; that it was in consideration of that assurance, and of the 70 dollars paid her, that she gave Laidley the receipt in full for the amount of the judgment; that she applied the money she received, to her own use; that Phoebe was at variance with Samuel Merrifield ; that Laidley made an effort to adjust the claim of Merrifield’s administrators with Samuel, who was the acting and responsible administrator, which he failed to accomplish, and he was warped by Samuel not to make a settlement with Phoebe; and that Laidley himself had declared, that Phoebe had made the settlement with him in order to favour him, because she was on bad terms with Samuei.
    Upon a hearing, in October 1825, the chancellor, — declaring that the receipt which Laidley had obtained from Phoebe Merrifield had been obtained by fraud and collusion between Laidley and her, -decreed, that unless Laidley should pay Samuel Merrifield, the acting and responsible administrator of Richard Merrifield, the sum of 263 dollars (the aggregate amount of the judgment of Merrifield’s administrators against Laidley, debt, damages or interest, and costs) with interest on the aggregate ^amount from the 8th March 1814 (the date of Laidley’s covenant with Wilson, which the court regarded as a mortgage) and the costs of this suit, — then six sevenths of the trust subject by the covenant mortgaged, should be sold by the marshal of the court, on a credit, to satisfy the debt; with directions to the marshal to report his sales &c.
    In September 1826, Laidley exhibited a bill against Samuel Merrifield and Wilson, which he called a bill of review, wherein he complained that the decree of October 1825 was erroneous; because his covenant with Wilson of March 1814 was not a mortgage, and, m the event that had occurred, did not bind him to execute a mortgage for the debts therein mentioned; and because the decree had given interest on the aggregate of the debt, damages and costs when the judgment for the debt itself did not give running interest, and, as the law at the time was, could not give it. And he further alleged, that he had evidence touching the acquittance given him by Phoebe Merrifield, of the judgment of Merrifield’s administrators against him, which would prove, that that acquittance was fairly obtained and ought to conclude the claim; that this evidence would be derived from Phoebe Merrifield and Wilson ; that he had expected to have the benefit of their answers to Samuel Merrifield" s bill of interpleader, but they had suffered the bill to be taken for confessed against them. And he shewed reasons (satisfactory to the court) why he had not, and could not have, taken their depositions. Therefore, he prayed the court to review and reverse its decree of October 1825, and meantime to injoin the defendant Merrifield from causing it to be executed.
    The chancellor accordingly suspended the execution of the decree till further order.
    This bill also was taken pro confesso as to Wilson. Samuel Merrifield answered it, controverting all its allegations, and, as to the merits of his claim, insisting on the matters alleged in his bill of inter-pleader.
    *Hereupon, the contest was resumed. New evidence was brought into the cause, particularly the deposition of Phoebe Merrifield. But the new evidence seemed yet more conclusive against Laidley, in respect to the receipt he had procured from Phcebe Merrifield, than the evidence which was in the cause at the first hearing.
    The chancellor, on the hearing, dismissed Laidley’s bill; and he appealed to this court.
    The cause was argued here by Johnson for the appellant, and W. Robertson for the appellee.
    A preliminary objection was taken by Robertson, that Laidley’s bill was a bill of review in form and substance, of the decree of October 1825; and that being an interlocutory decree, the bill of review was improperly entertained and it ought for that reason to have been dismissed. Johnson maintained, that though Laidley’s bill was in form a bill of review, yet it might properly and ought to be regarded as a bill in the nature of a bill of review, and a petition for a rehearing; and that the case was properly before this court, as on an appeal from the interlocutory decree itself.
    
      
      He decided the cause in the court of chancery.
    
    
      
       Equity Practice — Liberality—Bill of Review Taken as Petition for Rehearing. — In Kendrick v. Whitney, 28 Gratt. 654. it is said, the Virginia practice of courts of equity is marked by the greatest liberality with respect to the pleadings. Some times the petition for a rehearing is treated as a bill of review, and vice versa. In Laidley v. Merrifield, 7 Leigh 346, it was declared that an application by the party is not to be rejected altogether because he has given it the form and name of a bill of review instead of a petition or supplemental bill in the nature of a bill of review. The courts of equity regard substance rather than mere form. The principal case is also cited in the foot-note to this case. To the same point the principal case is cited in footnote to Sands v. Lynham, 27 Gratt. 291; foot-note to Hill v. Bowyer, 18 Gratt. 364; Reid v. Stuart, 20 W. Va. 393; Sturm v. Fleming, 22 W. Va. 412; Crumlish v. Railroad Co., 28 W. Va. 630; Carper v. Hawkins, 8 W. Va. 301; Shinn v. Board of Education, 39 W. Va. 504, 20 S. E. Rep. 606; also, in Dick v. Robinson, 19 W. Va. 165, upon the question of liberality of equity pleading.
      Same-Interlocutory Decree — Relief.—Where the decree is only interlocutory the pary injured must, seek his relief not by bill of review, as such, but by petition or supplemental bill in the nature of a biil of review. Nichols v. Nichols, 8 W. Va. 184, citing the principal case. To the same point the principal case is cited in Carper v. Hawkins, 8 W. Va. 301.
      The decree is interlocutory and might be opened or set aside by the court on petition for a re hearing. Hinchman v. Ballard, 7 W. Va. 187, citing Laidley v. Merrifield, 7 Leigh 346; Cocke v. Gilpin, 1 Rob. 20.
      In Hyman v. Smith, 10 W. Va. 313, it is said, it seems, the only difference between a bill of review and a bill in the nature of a bill of review consists in the interlocutory or final character of the decree. Where the decree is final, a bill of review is proper, and where the decree is interlocutory, a bill in the nature of a bill of review and petition for a rehearing is proper. An interlocutory decree, it seems, may be altered or reversed upon rehearing, without the assistance of a supplemental bill in the nature of a bill of review, if there is sufficient matter to alter or reverse it appearing upon the former proceedings, the new investigation is often, and perhaps usually brought on by a petition for a rehearing when there is no defect to be supplied. Story’s Eq. PL, §421, and notes-, Laidley v. Merrifield, 7 Leigh 346.
      Same — Bill of Review — When Proper. — The principal case is cited in Kanawha Valley Bank v. Wilson, 35 W. Va. 39, 13 S. E. Rep. 58, to the point that a, bill of review is a proceeding to correct a final decree, in the same court, for error apparent on the face of the decree.
      Same — Decrees—When They Become Final.—In Nat. Bank of Kingwood v. Jarvis, 28 W. Va. 811, it is said, but in other chancery cases, that is other than admiralty, the rule in this country seems to be, that all decrees are in jleri and in the breast of the court and subj ect to its control, until after the end of the term, that is, that it does not properly become a decree until after the term ends. 4 Min. Inst. pt. II. (1252) 1390; Laidley v. Merrifield, 7 Leigh 353; Hodges v. Davis, 4 H. & M. 400; Carper v. Hawkins, 8 W. Va. 291; Green v. Railroad Co., 11 W. Va. 685. See generally, monographic note on “Bills of Review” appended to Campbell v. Campbell. 22 Gratt. 649.
    
    
      
      Recelpts. — See monographic note on “Receipts” appended to Radcliff v. High, 2 Rob. 271.
    
    
      
       Judgments — Interest.—In this state, interest is generally recoverable on a judgment both at law and in equity. Tazewell v. Saunders, 13 Gratt. 368, citing Beall v. Silver, 2 Rand. 401; Roane v. Drum-mond, 6 Rand. 182; Clarke v. Day, 2 Heigh 172; Mercer y. Beale, 4 Heigh 189; Laidley v. Merrifield, 7 
        
        LeUih, 346. See monographic notes‘on. “Judgments” appended to Smith v. Charlton, 7 Gratt. 425; “Interest” appended to Fred v. Dixon, 27 Gratt. 541.
    
   CARR, J.

I am of opinion, that this case can be regarded as before us upon the appeal from the dismission of the bill of review alone. It was contended, that Laid-ley’s bill was not a bill of review, but should be regarded as a supplemental bill in the nature of a bill of review, and a petition for a rehearing. I know of only two modes by which a party can bring before the same court a decree of its own, to be corrected for error not clerical but judicial. These are a petition for a rehearing, and a bill of review. As to the ceremonies attending them, and the causes for which they will be received, they occupy nearly the same ground. The first is the proper step when the decree is not final; the latter, when it is enrolled, and the parties out of court. *I think the bill before us is a bill of review, because the party has given it both the form and the substance of such a bill. He calls it a bill of review, and prays that the decree may be reviewed, both for newly discovered facts, and error apparent on its face. It is equally clear, that the decree sought to be reviewed is interlocutory and not final. It decrees the payment of money, and that if not paid, the marshal shall sell the land, and report his proceedings to. the court. The case is like Bowyer v. Lewis, 1 Hen. & Munf. 553, where the bill of review was dismissed, because the decree was not final; and more exactly like the case of Ellzey v. Lane, 2 Id. 589, where on a mortgage a bill to foreclose had been filed, and a decree was made for a sale and report; and the court held that the decree was interlocutory, and that no bill of review in such case would lie. Without going into any other question, I should be for affirming the decree, as I am clearly of opinion that the appeal did not bring up the original decree as such, but merely as the decree sought to be reviewed. Whether now, upon a petition of appeal from the original decree, this court would allow it, will be best decided when the case shall come before us in that shape.

CABELL, J.

A bill of review, strictly speaking, is a proceeding to correct a final decree, in the same court, for error apparent on the face of the decree, or on account of new evidence discovered since the final de-. cree. The decree being final, the bill of review is not regarded as a part of the cause in which the decree was rendered, but a» a new suit having for its object the correction of the decree in the former suit. But where a decree is only interlocutory, but liable to the same objections, the party injured must seek his redress, not by a bill of review, as such, but by petition, or supplemental *bill in the nature of a bill of review. Such petition or supplemental bill is - regarded as a part of the very cause, the decree in which is sought to be corrected, and any order or decree of the court, on the petition or bill, is only interlocutory, and cannot be appealed from in England, however erroneous or unjust it may be, until the decree which is sought to be corrected by the petition or bill, shall itself become final. But when that decree becomes final, the appeal taken from it brings up every part of the cause, and will lead to the correction of every error, in whatever stage of the cause it may have been committed. And such was the law of Virginia, until the statute was passed allowing appeals from interlocutory decrees. That statute, however, has produced a material change in the course of our courts on this subject.

As I have already said, the same causes which will require a bill of review, after the decree is final, may require a petition or supplemental bill, while the decree is only interlocutory. Let us suppose, then, that such cause exists against an interlocutory decree, as would justify a petition or supplemental bill for its correction, and that the party seeking relief sets forth the cause in the form of a bill of review, asking a review and correction of the decree; is his-application to be rejected altogether, merely because he has given it the form and name of a bill of review, instead of a petition, or supplemental bill in the nature of a bill of ■ review? I think, certainly not. The court should regard its substance, and treat it, accordingly, as a petition or supplemental bill in the nature of a bill of review. There is, in fact, in many instances, no difference in form or substance between a bill of review, and a supplemental bill in the nature of a bill of review. The time at which they are presented, gives to them their character. The same bill which, if presented after a final decree, would be a good bill of review, would, if presented in the *same words, before final decree, be good as a supplemental bill in the nature of a bill of review, whatever name the party may inadvertently give to it. If such a bill, presented before final decree, be rejected, or being received, be dismissed, the order of rejection, and the decree of dismissal, are interlocutory, and under our statute may be appealed from, in the same manner as any other interlocutory orders or decrees. It is undeniable, that the party might have appealed from the original interlocutory decree- why shall he not do so from a subsequent interlocutory order or decree equally erroneous and injurious? I can see no reasonable objection to such a course. And when an appeal is allowed in a cause, it brings up every part of the cause. These principles are, I think, perfectly applicable to the case before us. Laidley’s bill, called by him a bill of review, was, in fact, a supplemental bill in the nature of a bill of review, and the order or decree of the court upon.it was an ihterlocutory order or decree, subject to the right of appeal, as any other interlocutory order or decree whatever ; and the appeal from it brings up every part of the cause. As to the cases of Bow-yer v. Lewis and Ellzey v. Lane, it is sufficient to say that they were decided before the statute allowed appeals from interlocutory decrees, and therefore do not apply. The cause must be heard upon its merits.

BROCKENBROUGH, J.

I concur with my brother Cabell, in the view he has taken of this preliminary question. The appellant’s counsel must be heard upon his objections to the original decree, considered in connexion with the new evidence and proceedings on Laidley’s bill. It is true that in the bill itself he calls it a bill of review, yet as the decree which he seeks to have reviewed is interlocutory only, and not final, it cannot be looked on as a bill of review, properly so called. But it may and must be regarded as a supplemental bill in nature of a *bill of review. Such a bill, though it does not ask that the former decree may be reviewed and reversed, yet prays that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is reheard upon the original bill, and that the plaintiff may have such relief as the nature of the case made by the supplemental bill requires. Mitf. Plead. 4th edi. p. 91. Courts of equity regard substance rather than form, and may, I think, so mould the pleadings and proceedings as to attain the real justice of the case. The bill before us, although it improperly prays that the former decree may be reviewed and reversed, makes a new case, and plays for an opportunity to introduce new testimony, and to be relieved in the premises according to equity. ; - r , : :

The cause was then argued upon its merits, and several questions were discussed— I. Whether, as Baidley’s covenant with Wilson of March 1814, bound him to give a mortgage for the debts therein mentioned, only in case Han way and Brooke’s suit against him should be decided in his favour, or their bill against him should be dismissed, — that bill had been so dismissed as the covenant intended it should be, before he should give the mortgage? Whether the casus fcederis had occurred or not? XI. Whether the receipt which Baidley had obtained from Phoebe Merrifield in full of the judgment of Merrificld’s administrators against him, was, under the circumstances of the case, a good acquittance of the judgment? If not of the whole judgment, whether the payment of 70 dollars which he actually made to her ought to be credited to him or not? III. Whether the chancellor did not err in allowing interest on the judgment of Merrifield’s administrators, that judgment not itself giving running interest, or, at least, in allowing interest on the damages or interest and costs, in- ■ i i : ■ : ! ' 1 . : ; i ■ cluded in the judgment, as well as on the debt? On the last point, *the cases of Beall v. Silver, 2 Rand. 401, and Mercer’s adm’r v. Beale, 4 Beigh 189, were cited.

CARR, J. According to the letter of the covenant between Baidley and Wilson of March 1814, by which the former bound himself to give the mortgage, in case the suit of Hanway and Brooke against him should be dismissed, the casus foederis had ■occurred ; for the suit was dismissed. But it was not dismissed on a hearing; it was dismissed by order of one plaintiff, and by consent of the counsel for the other: and the question is, whether such dismission of that suit was a dismission within the spirit and meaning of the covenant? Han-way deposed, that he never had been, and never expected to be, instructed by Reid & Ford to renew the suit, and he did not intend to renew it; and in fact it has never been renewed during the long time which has since elapsed. Thus, by the dismission of the suit, Baidley has had the full benefit of Wilson’s services, which was the consideration upon which he covenanted to give the mortgage. Therefore, I think, we may well conclude, that according to the substantial purpose and meaning of the covenant, as well as the letter, the casus foederis did occur, and that Baidley was bound to give the mortgage; especially when it is considered that the mortgage he contracted to give was a mortgage to secure payment of his own just debts; and that if the actual dismission of the suit was not enough to bind him to give the mortgage, it put it out of Wilson’s power to obtain any other dismission. : i : i ' i ■ ; ■ . : • : i i ¡ ! ■ : i l : ! '

As to the receipt which Baidley procured from Phcebe Merrifield in full of the judgment of Merrifield’s administrators against ; him, it was hardly denied in the argument, - that it was fraudulent; but it was conr ended, that it was a fraud practised by , I^aidley on her, not a fraudulent combina- : tion of him and her to defraud Samuel : Merrifield, the acting and responsible administrator; 'x'and that, as she had authority to receive and give an ■ acquittance for the whole debt, the partiai payment to her of 70 dollars was good, ani Baidley ought at least to have a credit for that payment. Upon a careful examination : of the proofs, I am convinced, that the transaction was a fraudulent collusion be■ ween Baidley and Phoebe Merrifield: whereby she obtained from him 70 dollars ! for her own use, and he got an acquittanc' of the whole judgment: he bribed her t1 betray the interests of her intestate’. estate, and to unite with him in defrauding : Samuel Merrifield, whom they both kne; to be the acting and responsible adminisi trator. [Here, the judge stated and ex-■ amined the evidence on the point.] With this opinion of the state of facts, I cannot agree that Baidley shall have credit for the paj’ment of 70 dollars; for to allow him the credit, would be to aid the parties to the fraud, to effect their purpose pro tanto.

The remaining question is, whether the chancellor erred in allowing interest on the aggregate amount of the debt and costs due by the judgment? Here was the sum of 264 dollars due by the judgment (call it debt, damages, interest, costs — what you will) which Baidley, on the 8th March 1814, acknowledged he owed, and mortgaged his land to pay. Need I refer to cases to shew that when the court of equity comes : to decree payment of this debt, and a foreclosure &c. it will give interest on the i whole? Does it matter what are the elements of which it is composed, and how the different items originated? when under his : seal the debtor has acknowledged it all, as i one debt, and bound his property to secure it. ' But suppose we still take it as a judgment composed of principal and costs, and this a bill to enforce it in equity: the cases of i Chamberlayne v. Temple and Beall v. ■ Silver shew, that in such cases equity will give interest on the whole aggregate ; amount, though sounding in damages, and carrying no interest *at law. Nor does the case of Mercer v. Beale . depart, in the slightest degree, from this : doctrine: on the contrary it is expressly • laid down there, that equity will (as a gen- : eral rule; give interest on judgments; and i further, the chancellor, in that case, decreed interest on the whole of the judgment i unpaid at the filing of the bill, from the date of the judgment, and this court af- ¡ firmed that decree. The point in question ! there, was of a different kind. The judg- ■ ment, as it stood at law, bearing no inter- : est, payments were made between 1802 and i 1809, reducing it from ¿£2500. to 614 dollars; l in 1816 (seven years after the judgment : was thus reduced) a bill was filed to en- ! force the payment of the balance; and it ' was contended, in the argument here, that the court of equity should have treated this njudgment exactly as if it had carried run-sning interest on its face, computing inter - t est on it to the time of the payments, and applying the payments first to the discharge of the interest. The two judges who gave opinions in the case thought, that as there was but one debt (the judgment at law) each payment must of necessit3' be made to it, and deducted from it at the date when made; and that the circumstance of filing a bill afterwards, could not authorize a change in the application of these payments, and applying them to a debt which did not exist when they were made, and which it could not then have been known would ever exist. This doctrine, I still think, stands on a stable foundation; but does not touch at all the general question we are now considering.

Upon the whole I am for affirming both decrees, in omnibus.

BROCKENBROUGH, J.

I concur with my brother Carr on the first point.

I think it clearly proved that Laidley paid the sum of 70 dollars, and that sum only, to the administratrix Phoebe Merri-field; and I concur with the chancellor, that *her receipt to Laidley of the 25th September 1822, for the whole amount of the judgment, was fraudulent. Therefore he was entirely correct in disregarding that receipt. But the payment of the 70 dollars is proved by other evidence than the receipt; and as the payment of the 70 dollars was made to one having a right to receive it, I cannot perceive that it would be consistent with equity to compel Laidley to pay it over again. In this respect, I think the decree is erroneous.

I am also of opinion that there was error in allowing interest on the aggregate amount of principal, interest and costs ascertained by the judgment of 1811. That judgment did not carrj’ interest on its face ; but I agree that, according to the decision of Beall v. Silver, it is proper that the court of equity should decree interest on the real debt due, to run on till the payment. Equity should give just so much interest as the jury and court of law would have given, if instead of stopping at the time of the verdict or judgment by default, it had been allowed to run on till payment. The judgment here is for ^60. debt, and for 44 dollars damages (which, according to my understanding, was the interest on that debt) and for 19 dollars costs. The aggregate sum is 263 dollars. But it is easy to distinguish the principal sum, which ought to carry interest till the day of payment, from the interest and the costs. I think that it ought to carry interest, not from the time fixed on by the chancellor, but from the prior period when the judgment was rendered, namely, March 1811.

CABELL, J. I do not deem it necessary to examine the evidence minutely, for the purpose of ascertaining whether Laidley was guilty of the fraud imputed to him, in procuring the receipt mentioned in the proceedings; for, even if it be true that his conduct in that respect was grossly fraudulent, he ought nevertheless to be credited for the 70 dollars which he actually paid. Mrs. *Merrifield, to whom it was paid, was co-adminis-tratrix of the estate, and had as much right to receive it as her co-administrator. It is no objection to the validity of the payment, that she intended to apply it to her own use. There is nothing in the record to shew that it was improper in her thus to apply it. We know nothing of the state of the accounts between her and the estate of her intestate. She may have been in advance for the estate; and besides, she was entitled as widow to one third of the estate after the payment of debts: and even if this money was misapplied, she and her sureties will be made responsible for.it, on the settlement of her accounts. The fact that Laidlej' has fraudulently attempted to release himself from a part of the judgment which he had not paid, cannot, in a court of equity, destroy his right to a credit for that which he has actually paid. Therefore I am of opinion that the decree should be reversed so far as it denies a credit to Laidley for the payment of 70 dollars, and in all things else affirmed; for I perceive no other error.

Decree — That the decree of the superiour court of chancery was erroneous in denying to Laidley credit for the 70 dollars paid by him on the 25th September 1822; therefore, decree as to that reversed, and as to the residue affirmed; and cause remanded for further proceedings.  