
    Gray and Scott v. Campbell.
    Thursday, April 2d, 1812.
    a. Injunction Bond — Defective Plea. — It is no plea to an action upon an injunction bond, "that the injunction was not dissolved unconditionally; hut upon terms, that the plaintiff at law should execute a bond for securing the title to a tract of land;” without averring in the plea that such bond had not been given.
    2. Same — Same.—Such defective plea ought not to be received by the Court, to set aside an office judgment.
    3. Injunction — Dissolution on Condition. — where an injunction is dissolved upon a condition; and that condition has been complied with by the defendant in equity, the surety in the injunction bond is not exonerated.
    Upon an appeal from a judgment of the Superior Court of Campbell County, in an action of debt on an injunction bond, dated ^November 12th, 1802, in the penalty of two thousand dollars.
    The declaration stated, that the injunction was dissolved; whereby the action accrued, &c.
    The cause standing for trial on a writ of Inquiry, the defendants tendered two pleas; •one of them ‘‘covenants performed, ” on which issue was taken; the other a special plea, praying oyer, and stating that the injunction was obtained on account of a defect of title in the lands sold, by the assignor of the plaintiff at law, to the plaintiff in equity; and that it was not dissolved unconditionally, but upon terms that the plaintiff at law should execute a bond for securing the title to the land in question, without averring that such bond had not been given. This plea the Court refused to receive; whereupon the defendants excepted.
    The parties went to trial upon the first plea; and at *the trial the defendants moved the Court to instruct the jury, that if it should appear in evidence that the injunction was dissolved on condition that the title should be secured, and not otherwise, a compliance with the condition of the said order, by securing the title to the land, would not warrant an action against Scott, the surety in the injunction bond: but the Court refused to give the instruction; whereupon the defendants again excepted.
    A verdict and judgment were rendered in favour of the plaintiff, for the debt in the declaration mentioned, to be discharged by the payment of 2881. 12s. 9d. with interest thereon from the 25th of December, 1800, and costs.
    Wickham, for the appellants.
    Whether the matter of the plea, which was rejected by the Court, constituted a good de-fence, or not, it ought to have been received. If there was any informality in it, the defendant might have moved to amend it.
    2. The plea rejected was a good defence on the merits. The surety in the injunction bond is responsible only in the event of an absolute dissolution of the injunction.
    Such appears to be the meaning of - the Act of Assembly on the subject,  It says nothing about a conditional, or incomplete dissolution, and speaks of awarding costs.
    3. The Court erred in refusing to give the instruction required by the defendants at the trial.
    The Attorney General, contra.
    The Court acted properly in rejecting the plea. Whenever a plea is tendered to the Court, it must contain such matter as is good ground of defence at law; or the Court should reject it. A frivolous plea ought not to be received, because such a practice would be productive of great delays and inconvenience. On setting aside an office judgment, an issuable plea Is necessary. In Downman v. Downman’s executor, 1 Wash. 26, ‘‘tender and refusal,” as there pleaded, was considered a bad plea, and therefore rejected. *That case shows, that a plea to set aside an office judgment, must be a plea to the merits; and that, in such case, the Court will not put the plaintiff to his demurrer.
    The plea in this case was not a good de-fence. The injunction was dissolved; and its being a conditional dissolution did not prevent it from being a dissolution. The breach of the condition of the bond is sufficiently assigned, without saying that the defendant in equity had performed the order of the Court of Chancery, by giving bond to secure the title to the land. A breach assigned in the terms of the condition, is sufficiently special,  A conditional dissolution of the injunction satisfies the terms of the injunction bond. If the title bond was not given, it was incumbent on the other party to aver it: but in the second bill of exceptions, it is admitted, that such bond was actually given.
    It may be said to be a hard case, that the surety in an injunction bond should be bound, when his principal had a ground for going into equity. But it often happens that a party going into equity for an injunction, though obtaining it, has been guilty of great default. In this case, the Chancery record shows, that the plaintiff in equity was altogether in the wrong. He had received a good title: the injunction was dissolved at his costs: but the Court (out of abundant caution) directed a bond to be given him for securing the title.
    Wickham, in reply.
    A good plea is not necessary to set aside an office judgment; but only an issuable plea; that is to say, a plea in bar, not a dilatory plea, or plea in abatement. In Stone v. Patterson,  and Waller’s executors v. Ellis, it was settled, that a party may file as many pleas as he thinks proper, without leave of the Court. Downman v. Downman’s executor was decided on special reasons, applying ■only to the plea of “tender and refusal.” The money was not brought into Court; without which, it was no plea at all. *The doctrine of Mr. Nicholas goes to this extent; that no plea to which the plaintiff may demur can be received on ■setting aside an office judgment. But a plea to which the plaintiff may demur, is an issuable plea; for issue in law may be taken upon it.
    Here the attorney general explained. He did not mean to say that formal objections to a plea shall exclude it: but if the fact alleged, (admitting it to be true,) is no ground of the defence, plea ought not to be received.
    Wickham, on the merits.
    It is evident the plaintiff in the injunction had reason for going into equity. Otherwise a bond of indemnity would not have been required in his favour. This is a clear case of relief granted upon the injunction. The question then is, whether in such a case, the surety in the injunction bond ought to be charged? The injunction was not dissolved by the Court, but by the act of the defendant in Chancery, (who was plaintiff at law;) that is, upon his executing the bond of indemnity.
    In Nelson v. Anderson, 2 Call, 286, it was determined, that the surety in an appeal bond is exonerated, upon the abatement of the appeal by the death of the appellant.
    The attorney general. That case went off upon the ground that the surety ought not to be injured by the act of God, and that the appeal should have been revived by scire facias.
    Curia advisari vult.
    
      
      See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
    
      
       Rev. Code, vol. 1, c. 64. sect. 56, p. 68.
    
    
      
       1 Chitty, 459; 5 Bac. 370.
    
    
      
       Winslow v. The Commonwealth, 2 H. & M. 459.
    
    
      
       M. S. May 6th, 1806.
    
    
      
       2 Muni. 88.
    
   January 9th, 1813. The President delivered the Court’s opinion, that the judgment be affirmed.  