
    Wm. J. Bryan et al. v. James Knight
    Appeal from Brazoria County.
    Where a petition is demurred to and an amendment to such petition is afterwards granted and filed: Held, that the amendments of the petition are not embraced within the admissions of the demurrer.
    Where parties sought to enjoin an execution issued against them as securities on a twelve months’ bond given under the 17th section of the execution law of 1840, for a purchase of land sold under jfieri facias, and admitted in their petition that the bond was forfeited, but alleged that the execution had been issued without the authority of any court of justice and without the sanction of the judicial tribunals of the land: Held, that these were not sufficient grounds to justify the granting of the injunction.
    This was a proceeding instituted by the appellants in the court below to enjoin an execution on a twelve months’ bond.
    The appellants’ petition alleges that the appellees had recovered a judgment against one Joshua Abbott; that an execution was issued upon that judgment and levied on a tract of land which was sold on a credit of twelve months; that Henry Austin became the purchaser and executed his bond with the appellants as his securities; that the bond was forfeited and execution sued out thereon and levied upon the property of W. J. Bryan, one of the securities, and that said execution was issued without the authority of any court of justice and without the sanction of the judicial tribunals of the land.
    The injunction was granted on the 29th of March, 1844. On the 24th of March, 1845, the appellee demurred to the petition, and on the 16th September, 1845, the appellants obtained leave to amend their petition and did amend it by alleging “ that they are informed and believe that the bond on which said execution was issued was not taken in conformity with law and is not such an one as execution could issue on.”
    The demurrer was argued and sustained, the appellants’ hill dismissed and a judgment entered in favor of appellee for his costs, from which this appeal is taken.
    
      Bucldey, for appellants,
    contended, 1st. That the statute which gave the force and effect of a judgment to a bond, so that an execution could issue thereon, was unconstitutional, because it conferred special powers upon ministerial officers and authorized them to determine the rights of persons without citation or notice; and because by the ’provisions of said statute those ministerial officers determined issues of fact without the intervention of a jury. He cited the Const. Dec. Eights, sec. 9; art. 4, sec. 1.
    2d. That the amended petition averred that the bond was not executed in conformity with law, and was such an one as execution could not be issued upon; and the demurrer admitting this fact should have been overruled.
    
      J. Webb, for appellee.
    1st. There is no error in the judgment of the court sustaining the demurrer. By the appellants’ own showing in their original petition, they had neither law nor equity to sustain them. They show that the bond was executed under the provisions of the 17th section of the execution law of 1840, vol. 4, p. 96, and they present no reasons in their petition for the interposition of a court of equity, except that the execution was issued “ without the authority of any court of justice, and without 'the sanction of the judicial tribunals of the land.” That reason is answered by the law itself, which directs the execution to issue without such authority or sanction.
    2d. The demurrer admits nothing but what is set forth in the original petition. The amendment, coming in six months after the demurrer was filed, is not embraced within its admissions. But even if it were, it alleges nothing which shows that the appellants were^ entitled to relief. Their bare opinion that the bond was not taken] in conformity with law, and that opinion founded only on information, without even an alleged inspection of the instrument or designation of its defects, does not present a plausible case for the interposition of a court of equity.
    3d. If the appellants’ deductions were well founded, as regarded the legal validity of the bond, still they have no right to go to a court of equity for relief, because they had a full, ample and complete^ remedy at law by a motion to the court to quash it. 5 Laws of Texas, p. 168, sec. 18; 4 Laws, p. 89, sec. 12.
    
      4th. The injunction should not have been granted in the first instance; because it was issued contrary to the provisions of the statute. 5 Laws, p. 83, sec. 6.
    
    5th. The appellants allege that Austin, their co-obligor, purchased the land under execution, and gave the bond in question for the purchase money, and now seeks to have the bond declared void, without offering to have the land re-conveyed, so as to subject it to the payment of the appellee’s debt. This is acting contrary to the maxim that “ he who seeks equity must himself do equity.”
   Lipscomb, J.

The demurrer reached everything that was in the petition and no more. If the facts set forth by the appellants constituted no sufficient ground to sustain the injunction, the demurrer was good, and the court did right in sustaining it. The original petition set up no sufficient equity to justify the interposition of an injunction for the protection of their rights. So far from any injustice having been done to them or any injury sustained, it appears from their own showing they were only called on to perform what they had voluntarily undertaken to do, with a full knowledge of the consequences; and certainly whatever modifications of the rule there may be as a question of' law, in chancery a man will be held to the execution of his undertaking, according to its true intent, where there are no circumstances of fraud or mistake. The amended petition was intended to present a legal defense against the bond, and perhaps under the circumstances of the case, if fairly presented, would have furnished a ground of relief. If their bond was not good in law, as there was no opportunity afforded them to contest it in a court of law, on the principles governing that court, it would not perhaps have been an improper exercise of chancery jurisdiction to have given them an opportunity to have tried the question; but in the manner presented, it is clear that it was bad and obnoxious to the demurrer. The amendment, instead of exhibiting the facts by making the bond a part of their petition, was a conclusion of law»only. Had the bond been made a part of the petition, the court then could have applied the law and determined whether the bond was in conformity with the law or not. We do not decide on the validity of an execution sued out on such a bond. We only decide that as the case is presented by the petition the demurrer was properly sustained. Judgment affirmed.  