
    Garnett v. Jones.
    December, 1833.
    Execution — Injunction by Principal — Liability of Surety for Damages Sustained Thereby.- — Execution is awarded on a forthcoming bond against the principal and the surety therein bound; the principal alone obtains an injunction to stay-proceedings at law. which injauction is dissolved: . ll*r,i), the surety is not liable for the damages incurred by the principal for retarding the execution by an injunction: and if an execution issue against the surety as well as principal for such damages, it ought, on the surety's motion, to be quashed. The execution should be so moulded, as to exempt the surety from the dam-, ages, and to make the principal who incurred them alone liable therefor.
    The appellee Jones, having recovered a judgment against one Thompson, in the county court of Buckingham, sued out a fieri facias thereon in August 1820, on which execution there was the following indorsement for the direction of the sheriS, viz. “Credit 58 dollars paid the 27th May 1818 — Credit John Johns’s half of the within, 25th May 1819.” It appeared by the sheriff’s return on this execution, that he gave credit for the 58 dollars, and omitting to give credit for Johns’s half of the debt, levied the execution on Thompson’s property for the balance; whereupon Thompson gave a forthcoming bond for the delivery of the property at the time and place appointed for the sale thereof, in which the appellant Garnett was bound as his surety. The amount of the debt stated in the forthcoming bond, exceeded the debt really due, to the extent of the credit indorsed on the execution for John Johns’s half, which the sheriff had overlooked or disregarded. The bond having been returned forfeited, the county court, at December term 1820, on the ^motion of Jones, and upon due notice to Thompson and Garnett (who, however, made no defence), awarded execution thereon against them both; and Jones forthwith sued out a fieri facias, on which the sheriff made return, in March 1821, that ■“proceedings were stopt by injunction.” What were the grounds on which this injunction had been obtained, nowifee appeared in this record.
    But, in March 1830, Jones sued out another fieri facias on the forthcoming bond against Thompson and Garnett, returnable in June following, for the debt therein mentioned, with interest and costs, and also “for 490 dollars to which the said Jones is entitled for his damages, by reason of the said Thompson retarding the execution of the judgment by injunction;” whence it appeared, that it was Thompson alone, not Thompson and Garnett, who had obtained the injunction; and it appeared, from the time for which the damages were computed, that the injunction had been pending for more than nine years.
    At April term 1830, Garnett moved the county court to quash the forthcoming bond and a fieri facias thereon of March 1830; and the court, on a hearing of the parties, quashed the forthcoming bond as well as the execution; quashing the forthcoming bond, on the ground, no doubt, that the sheriff had omitted to give credit on the original execution, “for John Johns’s half of the debt,” according to the direction indorsed thereon, and thus had taken the forthcoming bond for double the amount of the debt really due.
    Dpon a supersedeas to this order, awarded on the petition of Jones, the circuit court of Buckingham reversed the order, and adjudged that Garnett’s motion to quash the forthcoming bond and the execution thereon of March 1830, should be overruled. And then Garnett appealed to this court.
    Michie, for the appellant.
    Claiborne, for the appellee.
    
      
      Bxecution —Injunctions by Principal- -Liability of Surety for Damages Sustained Thereby. — Where the principal debtor alone retards an execution against him ami his surety by injunction, the surety is not liable for damages incurred thereby. To this effect the principal case is cited in approval in Mechuax v. Brown, 10 Gratt. 623; Claytor v. Anthony, 15 Gratt. 521.
    
   *CABI3BB, J.,

delivered the resolution of the court. The county court unquestionably erred in quashing the forthcoming bond, after it had, at a previous term, entered a judgment awarding an execution thereon. That judgment, so far as the county court was concerned, finally settled all questions as to the regularity of the bond. If the judgment was erroneous, it could only have been corrected by an appellate court. But, though the judgment and the bond on which it was founded, must be thus regarded as correct, yet it was still competent to the county court, to quash an execution irregularly sued out thereon. And there was manifest irregularity and injustice in the execution of March 1830. Thompson alone had retarded the execution on the bond, by the injunction; and the damages resulting from that measure, should have fallen on him only. The execution should,' therefore, have been so moulded as to subject Garnett to the payment of nothing more than the debt, interest and costs, due by the forthcoming bond. This was not done; it went against him for the damages also. The judgment of the circuit court overruling the motion to quash the execution, should, therefore, be reversed. But as the county court quashed the forthcoming bond, as well as the execution, that judgment must also be reversed, and judgment should be entered quashing the execution only.  