
    Sterling Harrison et al. vs. John Balfour.
    When the injunction of a judgment at law is dissolved, the plaintiff therein may institute instant proceedings on the injunction bond, against all the parties •thereto, without the issuance of an execution and its return, upon the judgment at law, since the dissolution of the injunction.
    After the dissolution of an injunction against a judgment at law, and action brought on the injunction bond, the issuance of an execution, and the execution and forfeiture of a forthcoming bond, will not bar the action on the injunction bond.
    Where a party defendant pleads a plea which begins only as an answer to part, and is, in truth, but art answer to part of the action, and the plaintiff demur to the plea, and no discontinuance is moved for in the court below, but upon the demurrer being sustained, and a judgment of quod recuperet rendered for plaintiff, the defendant brings the case to this court, and asks here that the action be discontinued; held, that the judgment of the court below should not be disturbed, and a discontinuance refused. ‘
    Whether the old rule of pleading, which made the demurrer or replication of a plaintiff to a plea which answered but part of the action, operatqj* as a discontinuance of the whole action, is in force and operation here, quere?
    
    Where the defendant pleads bad pleas, to which a demurrer is sustained, and judgment of respondeos ouster awarded, and he pleads bad pleas again, to which a demurrer is again sustained, the plaintiff is entitled to a judgment for want of a plea.
    In error from the circuit court of Yalabusha county, Hon* B. F. Caruthers, judge.
    John Balfour sued Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Hillary Talbert, Nathaniel Howard, Benjamin Williams, and Landin C. Maclin, as obligors in an injunction bond, executed to obtain an injunction at law. The condition of the bond was as follows: “ The condition of the above obligation is such, that whereas the above bound Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Nathaniel Howard, and Hillary Talbert, have obtained from the honorable David D. Shaltuck, judge of the second judicial district, of said state of Mississippi, on the 25th of April, A. D. 1840, an injunction restraining the said John Balfour, his attorneys, and all other persons, from further molesting the said Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Nathaniel Howard, and Hillary Talbert, upon a certain judgment obtained in the Yalabusha circuit court, wherein the said John Balfour was plaintiff, and Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Nathaniel Howard, and Hillary Talbert, were defendants, for the sum of $2,240 50, besides costs, in that behalf expended, until further decreed by the honorable superior court of chancery of the state of Mississippi: now therefore, if the said Jeremiah T. Talbert, Richard Hodges, Sterling Harrison, Nathaniel Howard, and Hillary Talbert, shall well and truly pay and satisfy to the said John Balfour the recovery aforesaid, and the costs therein expended, and also all such costs and damages as shall be awarded against them, in case the injunction shall be dissolved; then, and in that case, the obligation to be null and void, otherwise to be and remain in full force and virtue.”
    The breach assigned in the declaration was, that the injunction hadjbeen dissolved with six per cent, damages, but that neither of the defendants had paid the amount of the judgment at law and the costs.
    At the return term of the writ, the defendants appeared and plead three pleas, the substance of each of which was as follows : of the first, that no such order or decree was made, as alleged in the declaration, dissolving the injunction on.á bill filed'without reasonable and probable cause; of the second, that no writ of fieri facias, or other writ of execution, had been issued out on the judgment at law and returned nulla bona; of the third, that the judgment at law, which had been enjoined was against Talbert and Hodges, as makers, and the others as indorsers of a promissory note, and that no affidavit under the statute to proceed against the indorsers, that the makers had no propertyin this state, had been made, and no writ offierifacias, or other execution, sued out to obtain satisfaction of .the judgment at law against any of the defendants.
    To these pleas the plaintiff filed a demurrer, which was sus-, tained, and judgment of respondeat ouster awarded.
    
      At a subsequent term, under, this judgment, the defendant pleaded four pleas: 1. That as to all of the said declaration, except the six per cent, damages, precludi non, because Talbert and Hodges were makers, and the others indorsers, of the note on which the original judgment enjoined was had, and that, since the dissolution, no writ of fieri facias had issued on that original judgment. This plea concluded as follows : “ Wheré-fore they pray judgment if the plaintiff ought further to have or maintain his aforesaid action against these defendants.”
    
      2. That except as to the damages, precludi non, because the plaintiff at law had not issued execution at law on the judgment, and had a return of nulla bona.
    
    3. As to all, except the damages, they said precludi non, because Talbert and Hodges were makers, and the others indors-ers, of the note sued on in the original declaration; that no affidavit had been made under the statute; that the makers had no property, to justify execution against the indorsers, and that no writ of fieri facias had issued since the dissolution of the injunction.
    4. As to all, except the costs and damages, the defendants said precludi non, because they said that, since the dissolution of the injunction, the plaintiff had ordered out a writ of fieri facias, on the judgment at law which had been levied on certain negroes, and a forthcoming bond taken from the defendants, with* additional sureties, which bond had been returned forfeited, and thus'the judgment at law had been satisfied and extinguished.
    The last three pleas concluded as the first. The plaintiff below demurred to them all; the demurrers were sustained below, and a judgment rendered for the sum specified in the declaration, with the costs and damages.
    From which judgment the defendants prayed and prosecuted this writ, of error.
    
      A. Ci Baine, for plaintiff in error.
    The simple question, then, upon this state of the case is, whether, upon the dissolution of an injunction, a party can resort to his security 011 the bond, before resorting to his principal upon the execution and judgment. It is a principle of our statute law, as well as a universal principle of equity, that a security cannot be resorted to before the principal has been ■exhausted. “ Equity principles universally established are held to be a part of contracts,’’ 14 Ves. Jr. 169.
    To construe the statute, as the plaintiff below desires, would, in effect, make it read, that whenever a defendant against whom an injunction has been obtained, by his answer denies the whole equity of the bill, that then he shall recover upon his bond, —r which is manifestly absurd. It proves too much, for it not only proves the conclusion, asserted by the plaintiff at law, but establishes another conclusion clearly false in law as • well as just reasoning. The statute means no such thing. It is but a collateral and ultimate security. To construe it -otherwise would lead to a number of consequences too gross and outrageous to be contemplated without disgust. For if-the plaintiffs’ right of recovery is immediate, final and conclusive then though he were indicted, convicted, and his ears cut off at the whipping-post, for the perjury of his answer, still he might recover on his bond. It follows, then, that there is no just mode of construction other than the one we insist upon, namely, that a right of action does not accrue on the bond without averring that an execution has been sued out and returned mil. bo.
    
    The condition of the bond is, in' effect, an undertaking to perform the decree of the chancellor. This is its object, its design, its motive and reason. To see that this is true, just ask the question, what is the effect of the injunction ? It is to arrest the process of execution. Then what is the effect of a decree of dissolution'? It restores the process of execution to its force and efficacy. Then these being granted, and they cannot be successfully controverted, what is the effect of the decree of the chancellor? To pay the execution. Indeed, the language of the statute fully sustains this view of the case. “In case the -said injunction be dissolved, [“ dissolved,” mark you !] then the party suing out is to pay the money due at law. Suppose, for instance, that a judgment was arrested, by an injunction, and also the collection of a note at the same time enjoined? Could a suit be prosecuted on the bond, simply by setting out the common breach that the money due by the note had not been paid ? We think not.
    But again we say that the plaintiff (below) discontinued his action, and the court should have given judgment accordingly. The rule is, “ If a plea begin only as an answer to a part, and is in truth but an answer to a part, the plaintiff cannot demur, but must take his judgment for the part unanswered, as by nil dicit, and if he demur or plead over, the whole action is discontinued. 1 Saund. 28, n. 1, 2, 3; 1 Hen. Black. 645; 1 Bos. & Pul. 411; 6 Taunt. 606, 607; 2 Marsh. 304.
    
      Van Winkle and Potter, for defendant in error.
    The several pleas are bad in substance, and are no answer to any part of the action. The alleged discontinuance is the only pretence for reversing this judgment.
    If it were true that each of these pleas was an answer to part only, and not to the'whole action, still the demurrer would not cause a discontinuance. Bullythorpe v. Turner, Willes Rep. 475,*480; Sterling v. Sherwood, 20 John. Rep. 204; Haeock v. Coates, 2 Wend. 409; Hallenhrake v. M’Claskey, 2 Wend. 541; Edwards v. White, 12 Conn. Rep. 36.
    2d. The several pleas are in bar of the whole action. Each plea states certain facts, and, by praying judgment if plaintiff shall recover any part of his demand, insists that such facts are a bar to the whole action. “ The conclusion makes the plea.” 1 Ld. Raym. 337. It is true that the court will generally aid a defective prayer of judgment; but the court below could not limit the conclusion of this plea to the matter pleaded, for that would be to create a discontinuance, and to correct an error of the defendant at the expense of the plaintiff. This court will not restrict the prayer of judgment, for that would be to create an error, ex post facto, in order to reverse the judgment.
    3d. This judgment was rendered at the same term of this alleged discontinuance; a plaintiff may, at any time during the term, avoid the effect of a discontinuance, by taking judgment for the part unanswered. Comyn’s Dig. PI. W. 2. The general judgment in the record will be held as rendered, at one and the same time, on demurrer and nil dicit. In this case, the part unanswered was not disposed of until the pleas were adjudged insufficient, so that, at the time of judgment rendered, the whole action was undefended. “ If there be issue for part, and a discontinuance for other part, the court will not give judgment against the plaintiff, till issue tried; for the discontinuance will be aided by verdict.” 1 Salk. 218, and p. 4.
    4th. The error is cured by the statute: it is as much within the intent and meaning of the law as if it had occurred in any one of the cases specified in the act.
    5th. Under the rule stated for plaintiff in error, the plea must show a sufficient bar to part of the action. The language of the rule and the facts, in the cases cited, conclusively establish this position. The defendant may not plead to part, that which is no answer to any part of the action, and then seek to avail himself of a discontinuance. Such a plea is a mere nullity; it does not acquire substance from a dpmurrer filed to it by the plaintiff; it is, in no sense, “an answer to part” of the action. In this case the several pleas are utterly bad in substance, and as mere nullities; as if, instead of the matters alleged, they had set forth the alphabet of the Chinese. If issue had been taken on these pleas and found for the defendant, judgment could pot have been given according to the verdict; the issues would have been altogether immaterial. That which is no bar to any part, cannot be “ answer to part; ” the whole action continued as much unanswered, in every part, as if no such immaterial matter had been pleaded. See Stephen on Pleading, 216, 4 ed. Am.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action was brought by the defendant in error against the plaintiffs in error, on a bond given by them to enjoin a judgment at law. The defendants pleaded four pleas, all predicated on the ground that no execution had been issued and returned on the judgment at law, since the dissolution of the injunction. The last plea avers that an execution did issue, and that a forthcoming bond was given and forfeited, and that the judgment was thereby satisfied. This was done, however, after action brought, as appears from the dates in the plea. The pleas seemed to have been pleaded on the supposition that the party must pursue his remedy at law, after the injunction is dissolved, before he can resort to the remedy on the bond. It would seem that the condition of the bond would furnish the answer to this question. The bond is “conditioned for paying all money and costs due, or to become due, to the plaintiff in the action at law, and also all such costs and damages, as shall be awarded against him or her in case the injunction shall be dissolved.” What has the obligor to do, to keep the condition! To pay all the money, and costs, and damages, and if he does not do this, he breaks the condition. The bond does not require that an execution shall be issued on the judgment before the condition can be broken, nor does the law require it. The dissolution of the injunction is the contingency on the happening of which the bond is forfeited, and there is no qualification by law or otherwise. The right of action is then complete. The pleas then were defective in substance.

But there is a technical question raised, on which it is said the defendant was entitled to judgment, because the pleadings operated as a discontinuance. The pleas commence by professing to answer all the plaintiffs’ cause of action, “ save the damages decreed in the court of chancery,” and the old rule of pleading is invoked, which says, iffe. plea begin only as an answer to part, and is in truth but an answer to part, it is a discontinuance, and the plaintiff must not demur, but take his judgment for that which is unanswered, as by nil dicit; for if he demurs or pleads over, the whole action is discontinued, and a note to 1 Saund. Rep. 28, is relied on. If the rule is to be understood literally as it is laid down, it leads to absurdity. If the plaintiff can neither reply nor demur to a plea which professes to answer but part of the cause of action, but must take his judgment as by nil dicit for that part unanswered, it follows that the defendant may give what he pleases. But the rule is, in truth, but half stated in the authority referred to. If such a plea is interposed, the plaintiff may demur or reply to the part answered, and take his judgment by nil dicit for the part unanswered. Stephen on Pleading, 216. Many of the English decisions conformed to the rule, it is true, but it has been regarded by the more recent decisions as rather too technical for utility, and hence they have gone so far as to allow the' plaintiff to take his judgment by nil dicit at any time during the term, or even at a subsequent term, when no continuance has been entered. 1 Ld. Raym. 716. Besides, it is said that since the continuances, which were formerly regularly entered, have been dispensed with in Great Britain by rule of court, it may be questioned whether a discontinuance will now amount to error. The continuances are not regularly entered by our practice, but take place by operation of law, hence the same doubts might be entertained here. But the American authorities have gone even further to discountenance this technical rule than the English decisions, and, indeed, some of the decisions are directly against it. Frost v. Hammat, 11 Pick. 70; Sterling v. Sherwood, 20 John. Rep. 204. It would operate as a great hardship to sustain the objection in this case. The defendant first pleaded four frivolous pleas, to which the' plaintiff demurred, and there was judgment of respondeat ouster. The defendant again pleaded three pleas, quite as defective as the first set. The plaintiff was then entitled to judgment as for tvant of a plea, but demurred again; and the defendant now wishes to avail himself of a defectf to pleas which he ought not to have put in, and which amounted to a violation of the rule to plead over. This would be giving him the advantage of his own wrong. But, moreover, no discontinuance was moved for in the court below, as should have been done; but the defendant waits until he can bring the cause to this court, and here for the first time the question is raised. If the application had been made in the court below, the difficulty could have been obviated, as we have seen, at any time during the term. Besides, there is, in truth, no discontinuance of any part of the action; the judgment is quod recuperit, not for part, but for the whole cause of action, and, all things considered, we have no disposition'to interrupt it.

The judgment is affirmed with damages.  