
    * Arthur v. Crenshaw’s Adm’r.
    April, 1833.
    (Absent Brooke, J.)
    Debt on Injunction Bond — Evidence—Admissibility of Record of the Injunction Cause. — In debt on an injunction bond, the declaration in assigning-breach, alleges that the injunction was dissolved by the superiour court of chancery; plea, conditions performed; at trial, plaintiff offers the record of the injunction cause in evidence, whereby it appears the injunction was awarded by the county court in August 1814, dissolved in July 1820, and bill dismissed in September 1820; and in November 1820, leave was given to the plaintiff in equity to reinstate the injunction, and amend the bill, and the amended bill was died and answered; after-wards, the cause is removed by certiorari to the superiour court of chancery, which dissolved the injunction awarded by the county court in August 1814. not that awarded in November 1820— and an objection being taken to the record as evidence, on the ground that the injunction awarded in August 1814, had been finally and conclusively dissolved by the county court, and so was not and could not be dissolved by the superiour court, and, therefore, that there was a variance between the record offered in evidence, and the allegation, of the breach in the declaration, the objection was overruled, and the record admitted in evidence: Held, the record was properly admitted in evidence.
    Debt on bond with collateral condition, in the county court of Campbell, brought by Crenshaw’s administrator against Arthur surviving obligor of one Calloway and himself.
    The declaration, — after demanding the penalty of the bond, and alleging the execution thereof on the 17th November 1814, by Calloway and Arthur to Crenshaw (as-signee of M. Anthony) in his lifetime, — ■ set out the condition in hsec verba, as follows: “The condition of the above obligation is such, that whereas the said Callo-way has obtained an injunction to stay proceedings on a judgment recovered against him in the county court of Campbell by the said Crenshaw, assignee as aforesaid, amounting to 445 dollars, but to be discharged by the payment of 222 dollars with interest &c. — if, therefore, the said Cal-loway and Arthur, their heirs, executors or administrators, shall well and truly pay the -said Crenshaw assignee as aforesaid, his executors &c. the amount of the judgment &c. and all costs and damages which shall be awarded against them in case the ^injunction aforesaid should be dissolved, then the obligation to be void” &c. And then the declaration assigned as a breach of the condition, that the injunction was, on the-day of ——-, dissolved by the superiour court of chancery of Lynchburg, to which the cause had been removed by certiorari from the county court of Campbell which awarded the injunction; ■ yet neither Calloway in his lifetime, nor Arthur at any time, ever paid Crenshaw, the amount of the judgment at law, and the costs and damages awarded him on the dissolution of the injunction, or-any part,thereof, but failed and refused to pay the same. Arthur put in the plea of conditions performed, on which an issue was made up.
    At the trial the plaintiff offered in evidence a copy of the record of the suit in chancery, in which the injunction was awarded to Calloway, to stay proceedings on Crenshaw’s judgment against him; from which it appeared, that the injunction in the condition of the bond mentioned, was awarded by the county court of Campbell, on the 9th August 1814, upon a bill exhibited by Calloway, alleging matters of equity against Anthony, the assignor of the bond to Crenshaw, on which the judgment at law had been recovered: that Anthony having put in an answer, in which the allegations of the bill were denied, the county court at July term 1820, dissolved the injunction, and, afterwards, at September term in the same year, on a hearing, dismissed the bill with costs: that after-wards, at November term in the same year, the county court on the motion of Calloway, “gave him leave to reinstate the injunction dismissed at September term.” and to amend his bill: that amended bill was immediately exhibited, alleging other matters of equity against Anthony; and indeed, it was upon those new matters, lirst stated in the form of an affidavit, that the county court made the order giving Callo-way leave to reinstate his injunction : that Anthony answered the amended bill; and many documents arid depositions were filed; and then the cause remained, for some time, wholly neglected in the county court: that, at length, upon the application of Anthony (who having *paid the amount of the debt to his assignee, was now entitled to the benefit of the judgment at law) the cause was removed by cer-tiorari to the superiour court of chancery of Lynchburg; and that court, on motion, dissolved “the injunction awarded to Cal-loway by the county court of Campbell on the 9th August 1814.” Whereupon, Arthur’s counsel objected to the introduction of this record as evidence; but, the court overruled the objection and permitted the record to go in evidence to the jury; to which opinion he excepted.
    There was a verdict and judgment for Crenshaw’s administrator; from which Arthur appealed to the circuit court of Campbell, which affirmed the judgment; and then he appealed to this court.
    Leigh, for the appellant,
    argued, that the injunction referred to in the condition of the bond, was the injunction awarded, by the county court of Campbell on the 9th August 1814; that that injunction was dissolved by the county court at July term 1820, and the bill on which it was awarded, was dismissed at September term following; so that the injunction referred to in the condition of the bond, was, in truth, dissolved by the county court of Campbell, and not by the superiour court of chancery of Lynchburg: that, therefore, as the declaration alleged, that the injunction had been dissolved by the superiour court of chancery, and the record adduced to prove the breach, shewed that it was dissolved by the county court, there was such a variance between the evidence adduced to prove the breach of the condition of the injunction bond, and the allegation of the breach in the declaration, as rendered the evidence inadmissible, it was true, the county court, at November term 1820, gave Calloway leave to reinstate the injunction before awarded to him, and dismissed at the preceding September term; but that, in fact, was an award of a new and distinct injunction, on new matter alleged, to which the injunction bond had not, and could not have, any relation. The countjr court could *not, at November term, reinstate the former injunction awarded on the original bill, which had been dismissed at September term. The injunction which remained to be disposed of, was the new injunction awarded at November term 1820; and the order of the superiour court of chancery, overlooking the injunction of November 1820, and dissolving the injunction of August 1814, which had already been dissolved, and the bill on which it was awarded dismissed, by the county court, was wholly nugatory.
    Johnson, for the appellee,
    said, it was now quite immaterial, whether or no the county court could properly reinstate the original injunction, after the bill on which it was awarded had been dismissed at a previous term; for the county court, in fact, did reinstate, and intended to reinstate, the original injunction ; and this at the instance of Calloway. But however that might be, there was no material variance between the record adduced to prove the breach, and the allegation of the breach, in the declaration. The declaration alleged, that the injunction referred to in the condition of the bond (namely, the injunction awarded by the county court on the 9th August 1814) was dissolved by the su-periour court o± chancery; and the record shewed an order of the superiour court, dissolving the injunction awarded by the county court on the 9th August 1814. The argument, that that injunction had been previously dissolved by the county court, was founded on a nice criticism: the record stated, exactly what the declaration alleged, that the injunction was dissolved by the superiour court. If the decree of the superiour court was wrong, it could not be thus impugned. Besides, the substantial part of the allegation was that the injunction had been dissolved; and it could not be material whether the plaintiff’s history of the injunction cause was exactly accurate or not.
    
      
      The principal case is cited in Taylor v. Bank of Alexandria, 5 Leigh 476. See monographic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
    
   CARR, J.

I have seen few cases that, in my apprehension, present less difficulty than this. The only question is, whether the record was admissible evidence. The appellee *brings his action on an injunction bond, against the surety; and in his declaration describes the bond and sets out the condition with perfect accuracy, and, in assigning the breach of the condition, alleges that the injunction, which had been awarded by the county court of Campbell, was dissolved by the superiour court of chancery of Lynchburg. The defendant pleads conditions performed ; and the issue is made up on that plea. The plaintiff to prove the breach laid in the declaration, offers in evidence the record of the injunction suit; and this record shews the whole proceeding's in the county court, and the removal of the cause, by certiorari, to the superiour court; and states, in so many words, the decree of the superiour court, that the injunction awarded to Calloway by the said county court, on the 9th August 1814, be dissolved; which is the very injunction, on granting which the injunction bond, now sued on, was given. Could the court say that this evidence was not pertinent to the issue? not admissible under the pleadings? Unquestionably not. Here was the decree of a competent court dissolving the very injunction, the dissolution of which was the fact in issue. Whether that order of dissolution was a correct decree or not, was a question, surely, that could not be adjudged in this side way, on a question as to the admissibility of the record in evidence; the decree itself remaining in full force nowise impeached, and no appeal taken from it. I think the judgment must be affirmed.

CABELL, J., concurred.

TUCKER, P.

In Mowry v. Miller, 3 Leigh 561, which was an action for a malicious prosecution, the declaration set forth an examination and acquittal on the 7th October, and on the trial the plaintiff produced. in evidence the record of an acquit- ■ tal on the 7th November. The introduction of the record was objected to because of the variance. This court took a distinction between the case as it appeared, and that of a misrecital. We considered the declaration as merely ^alleging the fact of acquittal, and not as undertaking to recite the record; and (upon the authority of Purcell v. Macnamara, 9 East 157, overruling Pope v. Poster, 4 T. R. 590, and sustained by Philips v. Shaw, 4 Barn. & Ald. 435,) affirmed the judgment. These cases establish, that where the «time of the trial of a particular fact is not material, a variance from the date, in alleging the trial and the result, will not be material, although it is to be proved by a record, provided the time be not alleged as descriptive of the record by means of a prout patet per recordum or otherwise. Although these cases are not ad idem with the case before us, the principle is, I think, altogether applicable. Here, the substance of the allegation in the declaration, is, that the injunction was dissolved. There is no attempt to recite the order of dissolution, nor is there any mention of its date. But instead of alleging, as was the fact, that the injunction was dissolved in the county court, it is erroneously stated, that it was dissolved by the superiour court of chancery : — I saj' erroneously, because, I do not think it necessary to go into the inquiry, how far the defendant Anthony was, on the one hand, bound to respect the order of the county court reinstating the injunction, or, on the other, how far he was at liberty to disregard it, because irregularly made. If he was bound to respect it; if it was in fact a restraint upon him, which he had no right to set at defiance, until it was removed by the same cpurt of a superiour tribunal; and if, as I think, the reinstatement is to be considered as the old injunction, though most irregularly revived, then, the declaration strictly conforms to the fact. The injunction was dissolved by the superiour court of chancery of Lynch-burg. But if Anthony was at liberty to disregard this irregular reinstatement, or if it is to be considered as a new order of injunction, it is certain that the declaration erroneously describes the court, at which the dissolution took place. This, however, was not the point of the allegation. The substance of it was the fact of dissolution, which was to entitle the plaintiff to his action, and the date of the dissolution to ascertain *the extent of his demand. It is not improbable, that the declaration would have been considered faulty on special demurrer in this latter respect, as the day of dissolution is blank. But that defect cannot affect the judgment now. The only point in question is, the mistake as to the court in which the injunction was dissolved, which I have already said I do not consider as forming a material part of the allegation.

The case of Busby v. Watson, 2 W. Black. 1050, is not inapplicable to shew, that the mistake of the court is as immaterial as the mistake of the date. There, in case for malicious prosecution, the declaration alleged that the defendant procured the plaintiff to be indicted at the general quarter sessions of the peace for Middlesex; and a record was introduced, proving indeed the fact of indictment, but that it was at the general sessions, instead of the general quarter sessions. These courts are different, for the general quarter sessions, have more extensive jurisdiction than the general sessions. The evidence was rejected at nisi prius for this variance; but the court of common’ pleas thought otherwise; and ordered a new trial.

Judgment affirmed.  