#### *Medley v. Pannill’s Adm’r. Same v. Tunis’s Ex’ors.

May, 1842,

Richmond.

(Absent Baldwin,* J.)

Injunctions—Against Judgments—Irregular†—Case at Bar.—Where, pending an injunction to a jndg- „ mentfor money, the judgment creditor dies, and there is a revival in the name of his administrator of the suit in equity, but not of the judgment at law, it is not regular, though the object be to avoid the delay that would take place after a dissolution of the injunction in reviving the judgment, to make a decree in the suit in equity for the money which will be payable to the creditor upon such dissolution. The court of equity is to dissolve or perpetuate the injunction, or perpetuate it in part and dissolve it for the balance, and it may in the latter case, if it shall appear just, direct that no damages shall be paid by the complainant; but it is not, in any injunction case, not even where the injunction is wholly dissolved, to make a decree for the damages payable to the creditor on the dissolution.

The decrees from which these appeals were allowed, were made by the circuit court of the town of Lynchburg. The causes were argued upon the merits by Grattan for the appellant, and Robinson for the appellees. . But there was no point adjudged in them which deserves to be reported, except that stated in the following opinion.

*

The cases were argued in this court before his appointment.

†

lnjunctions—Against Judgments—Death of Judgment Creditor—Revival,—The right to sue out an execution upon the dissolution of an injunction, is the very condition of an injunction to a judgment; and if the judgment creditor die pending the injunction, the court of equity will in a summary way impose it as a condition on the complainant to consent to revive at law, under the penalty of having his injunction dissolved if he refuse. Richardson v. Prince George Justices, 11 Gratt. 198. The principal case is cited and distinguished in Kraker v. Shields, 20 Gratt. 397. See monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

ALLEN, J.

The merits of the case of Medley v. Pannill’s adm’r, it seems to me, are with the appellee. But a new mode of proceeding is adopted by the court in the decree rendered. The original parties to the judgment injoined having died during the pend-ency of the injunction, the court, instead of dissolving the injunction, was of opinion that it would be more equitable at once to decree the amount due, than, by a dissolution of the injunction, to put the administrator of Pannill to the delay and expense of a further proceeding at law *to. revive the judgment, befpre it could be made available. A decree was therefore rendered for the amount of the debt, in terest and damages, with a provision that if the decree was satisfied, the injunction was to stand perpetuated, but until satisfied, the rights of the creditor under the judgment, and against the sureties in the injunction bond, were not to be' impaired ; and liberty was therefore reserved to the creditors, if the decree was ineffectual in whole or in part, to resort to the court for any further decree which might be proper. The proceeding, though novel, struck me at first as convenient; but upon further reflection and consultation, I am satisfied the innovation upon the accustomed modes of procedure ought not to be sanctioned. Passing by the incongruity of giving a decree for that for which the party already has his judgment at law, and waiving the enquiry as to the power of a court of equity to decree damages, which are allowed by statute only upon the dissolution of the injunction, whereas the decree continues the injunction, and upon a certain contingency perpetuates it,—there are other difficulties in the way. The decree, though it contemplates a resort to the court in a certain contingency, is in effect final. The whole matter in controversy is settled ; debt, interest, damages and costs decreed. Is it competent for the court, after having so disposed of the subject, to revive, at any distance of time thereafter, the lien of the original judgment, so as to affect intermediate purchasers ? If it can do this, purchasers would be always insecure. If it cannot, the judgment creditor would lose one of his securities. Of that perhaps he would not be permitted to complain, as he takes the decree. But he retains all his rights against the surety in the injunction bond. These he never waived; and probably he would not halve consented to take such a decree, unless the court had professed to preserve his securities unimpaired. If, too, the lien of the judgment has been lost, the sureties in' the injunction bond might be materially xinjured. Again, the lien of the judgment results from the capacity to sue out an elegit, or to revive it. Here the creditor has not, and may never have, the right to do either. In what condition would the purchaser of lands prior to the decree, which otherwise would have been bound by the judgment, be placed by such a decree ? Again, the law gives the sureties in the injunction bond a remedy over against those in the appeal bond. The injunction is not dissolved, and neither the surety in the injunction bond, nor the surety in the appeal bond, can be rendered liable primarily. If subsequently the court undertakes to give relief, it must set aside the first decree (the power to do which in such a case as this might be questioned) and then give a new decree dissolving the injunction, in order to revive the liability of the surety in the injunction bond, and by so doing revive that of the surety in the appeal bond. If it cannot do both, it does injustice to the sureties in one bond, and ought not to revive the liabilities of either set. And even if it could do both, great injustice might be done to one set of. sureties by the intervening insolvency of the others. The old and recognized mode involves none of these difficulties. If the party desires to be ready with his execution *61as soon as the injunction is dissolved, the chancery court would impose it as a condition on the complainant to consent to revive at law, under the penalty of having the injunction dissolved for that cause. And the revival itself, if the party be driven to that course, is attended with but little delay or expense. Ror this reason, I think the decree must be reversed with costs.

The other judges concurring, the decree of the court of appeals, in Medley v. PannilFs adm’r, declared that there was error in the decree, in proceeding to decree against the appellant for the amount of the judgment injoined, with damages and interest, instead of dissolving *the injunction and dismissing the bill with costs : Therefore, decree reversed with costs, and injunction dissolved and bill dismissed with costs.

In Medley v. Tunis’s ex’ors, the circuit court and this court held that the appellant was entitled to a credit against the judgment. But the decree of this court declared that the circuit court erred in rendering a decree for the balance due, instead of perpetuating tbe injunction for the amount of the credit, with costs, and dissolving it as to the residue, without damages : Therefore, decree reversed with costs, and decree entered perpetuating the injunction for the credit, with costs, and dissolving it as to the residue, without damages.*

*

Where any injunction shall be hereafter obtained, to stay proceedings on any judgment rendered in any of the courts of this commonwealth, for money or tobacco, and such injunction shall be dissolved wholly or in part, damages at the rate of *temper centu/mper annum,*from the time the injunction was awarded until the dissolution, shall be paid to the party on whose behalf such judgment shall be obtained, on such sum as appears to be due, including the costs; and where any such injunction shall be depending in the circuit superior courts of law and chancery, the clerk of such court shall, on dissolution thereof, certify to the clerk of the court wherein the judgment was obtained, the order of dissolution, as also the time of granting and dissolving such injunction, and the clerk shall issue the execution according to the provisions of this act; and in all cases where a forthcoming bond has been executed by the complainant in such injunction, and no judgment rendered thereupon, the court in which execution is awarded shall direct the said damages to be included in the judgment, which shall be in satisfaction of all interest and damages during the time aforesaid: *provided nevertheless,*that where the injunction is granted in order to obtain a discovery, or any part of the judgment shall remain injoined, the court wherein the injunction shall be depending may, if it appear just, direct that no such damages shall be paid by the complainant, or such proportion as according to equity the court may deem expedient; and the clerk of the court where the judgment was rendered, or the court by whom execution shall be awarded, shall govern themselves accordingly. Acts of 1830-31, ch. 11, § 43. Suppl. to Rev. Code, p. 152, taken from 1 Rev. Code, ch. 66, § 61, p. 209.