The opinion of the court was delivered by
The writ, in this case, Was a writ of audita querela, brought obviously for delay, and presented no ground of complaint whatever. The execution in favor of Mrs. Ward against Perry and others was superseded. The writ was returned and has gone through all the regular law delay, by review and exceptions, to this time. The county court adjudged, that it was brought for delay, and, in pursuance of the direction of the statute, awarded to the defendant twelve per cent, interest and double cost. If it was in the power of the county court to make this award, their decision could not be re-examined here; as it was in their discretion to determine whether the writ Was brought for delay, and if so, whether twelve or six per cent, damages should be allowed, and whether single or double costs should be awarded.
The statute requires the court to make such a determination, when the writ is brought for delay only. It is copied from the statute of 1809, and although it is true, that, when the statute of 1809 was passed, interest was not collectable on executions, yet, when it was re-enacted in the Revised Statutes, after the law was passed giving interest on executions, we have no doubt it was intended, that the court might award the interest at twelve per cent, and double cost, as before.
Whether the creditor will, in addition to the twelve per cent., be justified in collecting interest on her execution can be determined, when that question arises. If the complainants in the audita querela shall pay and satisfy the original judgment rendered against them, together with the judgment now rendered, and Mrs. Ward should still claim any farther sum as interest, she may encounter another audita querela, in which it can be determined, whether she is so entitled, or not.
The judgment of the county court is affirmed.