
    S. E. Goddard et al. vs. John Long.
    In all eases, where judgments or decrees are admissible as evidence, as a medium of proving the facts on which they are based, the parties to the judgments, or decrees, and to the suit in which they are sought to be used as evidence, must be the same, or in jwisway* And where a decree in a court of chancery is relied on as evidence (ke proceedings on which it was predicated must accompany it.
    In error, from the circuit court of Hinds county, Hon. John H. Rollins, judge.
    John Long sued Sherman E. Goddard, Samuel B. Marsh, and Samuel T. King, to the fall term, 1839, of the circuit court of Hinds county, in an action of debt, upon a bond, with a collateral condition. After setting forth the bond, the declaration sets out the condition, as follows: “ The condition of the above obligation is such, that whereas the above bound Sherman E. Goddard has, the day of the date hereof, obtained an injunction, (meaning in the superior court of chancery of the state of Mississippi,) to restrain Jordan Elder, and John Long, from selling and disposing of two slaves, to wit, Sarah and Squire, and certain lands named in said injunction. Now, if the slaves Sarah and Squire shall not be removed from the jurisdiction of this state, but shall be forthcoming to abide the final decree of the court in this behalf, then the above obligation to be void, otherwise, to remain in full force and virtue.” The breach of the condition is thus assigned : “ And the plaintiff, in fact, says and avers, that there has been a final decree of the superior court of chancery of Mississippi, in which the cause and injunction. were, and remained, and which is meant, in the instrument, with condition, here sued on, which decree is in favor of the plaintiff; and also avers, that, notwithstanding said obligation and said final decree, the said negro slaves, Sarah and Squire, were not, are not, and have not been forthcoming, to abide said decree of the court; but, on the contrary, plaintiff avers, that one of said negroes, viz., Sarah, long since, and prior to said decree, was removed from the jurisdiction of the court aforesaid, out of the state of Mississippi, by the obligor and defendant, Sherman E. Goddard, so that said negro cannot be available in any way, with plaintiff, or said Elder, the trustee, in the deed of trust, whose operation was enjoined and stayed by said Goddard; by means whereof the plaintiff hath sustained damage,” &c. The process was served on Goddard and King, and returned not found, as to Marshy The defendants, on whom process was served, at the return,¿¡¡{Headed nil debit, to which the plaintiff demurred. The demurrer was sustained by the court, and a judgment of respondeairóuster awarded. The same defendants then pleaded conditions performed, and payment, to which replications were filed, and issue joined.
    At the December term, 1842, the defendant, Marsh, appeared, and pleaded as follows, to wit:
    
      11 In the Circuit Court of Hinds County, December Term, 1842.
    “And the defendant, Samuel B. Marsh, by leave of the court, granted on his application, supported by affidavit, which is herewith filed, by attorney, comes, &c., and for plea says, that no such injunction as that described in the plaintiff’s declaration, was ever, at any time, obtained by the defendant, Sherman E. Goddard, to restrain Jordan Elder and John Long from selling or disposing of two slaves, viz.: Sarah and Squire, and certain lands named in said injunction; and that, in fact, if such bond as described in plaintiff’s declaration, were sealed and delivered at all, it was sealed and delivered without the fiat of any judge, or order of any court, having power to grant the same, and was without authority of law, and this he is ready to verify.
    “And for further plea in this behalf, the said defendant, Marsh, says, that no final decree has ever been rendered in the superior court of chancery, of Mississippi, in favor of the plaintiff, in this behalf, as in his declaration he has alleged, and this he prays, &c.
    
      “ And for farther plea, the said Samuel B. Marsh, comes, &c., and craves oyer of the said supposed writing, obligatory, with condition, in the plaintiff’s declaration- mentioned, and it is read to him, in these words, &c.: and thereupon the said Samuel B. Marsh says: the plaintiff his action aforesaid to have, &c., because he says, that the slaves, Sarah and Squire, therein mentioned, have not been removed from the jurisdiction of this state, but have been, and are now, within the jurisdiction of the state, ready to be delivered up, to abide such final decree as may be made by the superior court of chancery, in the case in that court pending between S. E. Goddard, complainant, and John Long and Jordan Elder, defendants; but that no final decree has ever been rendered by said court in said cause, &c.”
    The plaintiff replied to the first and third of these pleas, and demurred to the second, and the court sustained the demurrer. On the trial, the plaintiff, to prove the final decree, introduced a paper, in writing, in these words:
    “ Superior Court of Chancery of the State of Mississippi, ] June Term, 1839. \
    
    “S. E. Goddard, complainant, v. John Long et al., defendants.
    “It appearing, to the satisfaction of the court, that the injunction heretofore granted in this case, was dissolved at the last term of this court, and that no steps toward the further prosecution of his suit, have been taken by said complainant: It is ordered that said bill of complaint be dismissed, and that complainant pay the costs of this suit to be taxed.
    “I, Richard L. Dixon, clerk of said court, do hereby certify that the foregoing order is a true copy from the minutes of said court. In testimony whereof I have hereunto subscribed my name, and affixed the seal of said court,” &c.
    To the introduction of which the defendants objected.
    1st. Because it did not appear to have been made in the cause referred to in the declaration, and did not identify itself as the final decree in said cause; and
    
      2d. Because the final decree could only be proved by a certified transcript of the entire record in the cause.
    The court overruled these objections, and permitted the copy of the order to be read to the jury, as sufficient evidence that a final decree had been rendered by the superior court of chancery, in the case named in the declaration, to which the defendants excepted. The jury found for the plaintiff, and the defendants have brought the case to this court by writ of error.
    
      Mayes and Clifton, for plaintiffs in error.
    The plaintiffs in error contend,
    1st. That the declaration of the plaintiff is fatally defective; and, therefore, on the demurrer, the court below should have decided for the defendants.
    2d. That the plea of the defendant Marsh, to which a demurrer was sustained, is a good bar, and the court erred in adjudging otherwise.
    3d. That on sustaining the demurrer to Marsh’s plea, the judgment should have been that he answer over.
    4th. The court should have sustained the defendants’ objection to the copy of the order, offered in evidence.
    1st. The declaration is fatally defective. It does not show" any breach of the condition of the bond. It alleges, that “there Iras been a final decree of the superior court of chancery of Mississippi, in which the cause and injunction were and remained, and which is meant in the instrument, with condition here sued on, which decree is in favor of the plaintiff.” This allegation, when analyzed, only states these facts : 1st, that there had been a final decree of the superior court of chancery of Mississippi; 2d, that the cause and injunction were, and remained in that court; 3d, that the superior court of chancery was meant in the instrument and condition sued on; 4th, that such decree was in favor of the plaintiff.
    All this may be strictly true, and yet the decree may not have been rendered in the cause mentioned in the bond. The defendants’ liability could only arise upon a decree in that cause, and as to this essential fact, the declaration is wholly silent. If the decree spoken of was not in that cause, there is no breach. The declaration must state the breach with particularity. Chitty, 6; Stephen, 884. Indeed, the allegation is repugnant to the idea that the decree was in that cause. It is, that there had been “a final decree of the superior court of chancery'of Mississippi, in which the cause and injunction were and remained.” The cause and injunction could not remain in the court, if there had been a final decree. “ The plaintiff declared for taking and carrying away certain timber, lying in a certain place, for the completion of a house then lately built.” Bad on demurrer for repugnance; for the timber could not be for the building of a house already built. Nevil v. Soper, 1 Salk. 218.
    Where defendant pleaded a grant out of a term of years, and proceeded to allege that, by virtue thereof he was seized in his demesne as of freehold for the term of his life, the plea was held bad for repugnance. Butts’ Cases, 7 Rep. 260; Stephen, 420, (Philad. edition, 1831.) It is only where the repugnancy is contained in an allegation capable of rejection as superfluous, or where there is a prior averment upon the subject, which is adequate to the support of the case, that it becomes of no moment, and unobjectionable upon demurrer. 1 Chitty, 256, 256.
    But, further, the declaration avers, “ that notwithstanding said obligation and said final decree, the said negro slaves, Sarah and Squire, were not, and are not, and have not been forthcoming to abide said decree of the court.” The decree is not set out. It is only alleged that the decree was in favor of the plaintiff; but whether it directed or decided anything with respect to said slaves, does not appear. Their not being forthcoming to abide the decree, if it includes the idea that the decree related to them, would be but a negative pregnant, and bad on demurrer. But to make the most of it, we can only arrive at the idea from this allegation, that the decree had relation to them, and that their delivery was necessary to the performance of the,decree, by argument or inference, and that is bad on demurrer. • Stephen, 220, 410, 411, 426.
    In trespass for taking and carrying away plaintiff’s goods. Plea,, that the plaintiff never had any goods. “ This is an infallible argument that the defendant is not guilty, yet it is no plea.” Stephen, 427.
    2d. The plea of Marsh, to which the demurrer was sustained, is a good bar, and the court erred in sustaining the demurrer to it.
    That plea states, that no such injunction as that set forth in plaintiff’s declaration, was obtained by the defendant, S. E. Goddard, to restrain Jordan Elder and John Long from selling and disposing of two slaves, to wit, Sarah and Squire, and certain lands named in said injunction.” Had the plea stopped here, it is presumed, there can be no question but it would have been good. The court will notice, judicially, the course of practice and the law of the land. The party seeking an injunction first obtains a fiat of the judge. This is not an injunction, but an order granting or directing one to issue. The bond is next executed. If the party obtain the fiat and execute the bond, but does not sue out the injunction, no action can be maintained on the bond. The object of the bond is to secure the party against damages arising from suing out the injunction, not from damages arising from the fiat, from which none can arise. It is the injunction, and not the leave to sue it out, that may work an injury. The gist of the complaint is, that the injunction, not the fiat, was obtained. The plea denies that the injunction was obtained. It is, therefore, a full answer to the merits of the plaintiff’s action.
    The question then arises, does that which follows in the plea vitiate it? The plea proceeds, “and in fact, if such hondas described in plaintiff’s declaration, were sealed and delivered at all, it was sealed and delivered without the fiat of any judge, or order of any court having power to grant the same, and was without authority of law.”
    The entire plea consists of two members; the first relates to the injunction, the second to the fiat. If the second be a good bar, when taken alone, then the plea is bad for duplicity; if not a good bar, when thus taken, it will be rejected as surplusage, and the plea will be held good. Duplicity is the only ground of demurrer assigned, which it is considered necessary particularly to notice. Duplicity in a plea consists in its containing several distinct answers to the cause of action. Stephen, 292, 299. But matter immaterial does not constitute duplicity. The only reason of the rule against duplicity is, that a single issue is required. Stephen, 300, 301. The question then is this, does the second member of the plea set forth a good bar to the plaintiff's action? It does not; for whether there was or was not a fiat, granted by a judge, “ having the power to grant the same,” if, in fact, the injunction issued, and the party was thereby delayed and sustained damage, he might maintain his action on the bond. It would be a valid obligation at the common law.
    3d. Upon sustaining the demurrer to Marsh’s plea, (first in the record, called second in the demurrer,) the judgment should have been respondeat ouster. Rev. Code, 120.
    The defendants, except Marsh, it will be observed, were served with process. There is in the record a demurrer to a plea of ‘ nil debet,’ which plea the record does not contain.
    The action was brought to the November term, 1839, of the Hinds circuit, and the process served upon Goddard and King to that term. It is to be inferred they pleaded nil debet, as the record shows several continuances by “ the parties,” which is to be taken to be the parties plaintiff, and the defendants served with process; and it .is to be so taken, especially when the record shows that Marsh appeared in the court for the first time at the December term, 1842, and then made his separate defence to the action, by three several pleas, which are embraced in the record. The demurrer to the plea of nil debet, of Goddard and King, upon which the cause had been continued, being sustained at that term, and a judgment of respondeat ouster awarded as to them, they filed the pleas of “conditions performed” and “ payment,” and hence all the pleas, as well those of Marsh as of the other defendants, are filed as of that term. From the demurrer we see that it was to a plea of “ the defendants,” and will be understood of the defendants who were served, and who thereafter answered over.
    The second demurrer was to Marsh’s second plea, (the first in the record) by name. It was sustained, and there was no judgment of respondeat ouster. Marsh could not answer over, under the judgment sustaining the demurrer to the plea of “ nil debet” for he was no party to that plea. Had he been, the other plea and demurrer presented a distinct issue, and should have been followed by a distinct judgment, that he might by his plea, under the judgment of respondeat ouster, have removed the formal objection of duplicity, if his plea was double. At any rate, the statute is imperative, and it was error not so to have entered it, and ita lex scripta est, is a sufficient reason.
    4th. The court should have sustained the defendants’ objection to the copy of the order offered in evidence.
    The case in the superior court of chancery of Mississippi, as appears from the plaintiffs declaration, involved the question of Elder’s right, as trustee for Long, to sell two negro slaves, Sarah and Squire, and certain lands, named in the injunction. The case was in the name of Sherman E. Goddard v. Jordan Elder and John Long: The liability of the obligors in the bond arose upon their failure to have said slaves forthcoming to abide the final decree of the court of chancery, in that case, if in favor of the opposite party; and it was indispensable to the plaintiff’s right to recover on the bond, that such final decree should have been made in his favor, and so his declaration averred.
    The existence of the final decree was directly put in issue by the pleadings, and the necessity of proving it, rested upon the plaintiff.
    That proof is not furnished by the copy of an order of the chancery court, dismissing a bill in a case in that court of “ S. E. Goddard v. John Long et al.; ” because, if it could be held to be a final decree, it does not appear .to have been made in the cause, or between the parties referred to in the declaration. “ S. E. Goddard” in the order maybe the same with “ShermanE. Goddard ” in the declaration, or he may not; there is nothing in the copy of the order to identify him, and there was no other proof offered; the probability may be that way; but the field of uncertainty and conjecture is infinitely enlarged, when we seek to ascertain whether “ John Long et al.” are intended for John Long and Jordan Elder, or for John Long and one, or one hundred distinct and totally different persons. It would be relaxing the rules of evidence to a dangerous extent to presume, that because there are some points of resemblance between the two cases, they are identical; and hence the necessity of producing, not the copy' of an order, but the record of the cause, that the court might see whether it was between the same parties and involved the same questions, that were involved in that suit in chancery, upon the final determination of which, in favor of the plaintiff alone, could the liability of the defendants in this action arise. The general rule of law is, that the wholé record which concerns the matter in controversy, Ought to be produced. Comyn’s Digest, Title Evid. A. 4; IStarkie, (edition 1834,) 163; 1 Yerg. 261; 2 Nott and McCord, 299 ; 11 Pick. 28 ; 12 Pick. 568.
    The record could only prove the chancery suit had been decided, by furnishing evidence it was between the same parties. 22 Wend. 178. To what extent the aspect of the case might have been changed, by an offer on the part of the plaintiff to prove, that the copy of the order produced was made in the cause referred to in the declaration, we are not called upon to say, since the court below held it was sufficient per se to sustain the plaintiff’s allegation.
    A decretal order in paper, with proof of the bill and answer, are sufficient evidence. 1 Keb. 21. • So, if the bill and answer be recited, it is sufficient. Cont. 1 Keb. 21. Semb. per Trevor at Guildhall, 9 Ann, inter Whaln & Lowth. But a decree which does not recite the bill and answer, shall not be allowed. Same authority as cited; Comyn’s Dig. Title Evidence, C. 1. And in 5 Wend. 47, it is decided, that to show a matter decided in a court of chancery, an exemplification of the pleadings, as the bill, answer and decree, is necessary. And this is conformable to general principles, is essential to the security of the rights of the parties, and ought not to be departed from.
   Peu CuRIam.

This action was brought by Long against the plaintiffs in error on an injunction bond, which recites that Goddard had obtained an injunction to restrain Jordan Elder and John Long from selling two slaves and certain lands named in the injunction, and conditioned that said slaves should not be removed from the jurisdiction of the state, but should be forthcoming to abide the final decree in that behalf. The breach is, that one. of the slaves was removed from the state, and was not forthcoming to abide the decree, with an averment that a final decree had been made.

In proof of the final decree on which the plaintiff relied, a paper in the following words was introduced : “ Superior Court of Chancery of the State of Mississippi, June Term, 1839; S. E. Goddard, complainant, v. John Long et al., defendants.

“ It appearing to the satisfaction of the court, that the injunction heretofore granted in this case, was dissolved at the last term of this court, and that no steps toward the further prosecution of his suit have been taken, by said complainant, it is ordered that said bill of complaint be dismissed, and that complainant pay the costs of this suit to be taxed.” The clerk certified that this was a true copy from the minutes of the court.

As a matter of evidence, it is objectionable because it is uncertain. This order may have been made in a suit between different parties. It would have been equally admissible in any and every suit in which Long and Goddard were parties. In all cases where judgments or decrees are admissible as evidence, as a medium of proving the facts on which they are based, the parties must be the same or in privity. And the better rule seems to be, that when a decree of a court of chancery is relied on, the proceedings on which the decree was predicated should accompany it. 1 Phil. Ev. 393; 1 Stark. 246.

We omit to notice the objections arising out of the pleadings, as on a second trial they may be shaped to suit the views of counsel. The plea of Marsh, to which the demurrer was filed, seems to be liable to some objection, but it is unnecessary that we now decide on its sufficiency.

The judgment must be reversed and catise remanded.  