
    *Zenas Kent and others v. Lucius V. Bierce and others.
    It is not necessary on the dissolution of an injunction and dismissal of the . bill, where the injunction did not operate, to stay execution upon a former decree or judgment, to sue execution against the complainant, before a suit can be sustained on the bond against the securities.
    Payment of costs of original bill no bar to the action on such bond.'
    An injunction may be continued on the complainant’s application, upon the terms of giving a new bond with new security; and if such be the terms of the order, the first bond is discharged.
    On general pleadings court can not take any cognizance of the commencement or termination of the terms of a court of law.
    A joint demurrer to two pleas — one held good, judgment goes for the party pleading the pleas. . Amendment allowed.
    This case was adjourned here for decision from the county of Portage. The action was debt upon a penal bond, subject to the condition that Bierce (one of the defendants) had obtained an injunction in chancery restraining the obligees from erecting a meeting-house on two lots in the village of Ravenna; and if he should fail to prosecute his bill to effect, and pay all damages, losses, or injuries the obligees-might sustain by reason of the injunction, the bond should be void.
    The plaintiffs assigned' the following breaches under the statute r
    1. That the bill of injunction was dismissed in the Supreme Court at the complainants’ costs.
    2. That before the injunction the plaintiffs had procured materials for-building the meeting-house, and employed workmen, who bad been and were actually engaged upon said building, and was prevented by the injunction from continuing the work from that time until the dismissal of the bill, whereby the labor and materials were injured and lost, to the amount of seven hundred dollars.
    Pleas: 1. That the court of common pleas, while the cause was pending there, and after the date of the bond, by interlocutory decree, ordered the injunction continued upon condition that Bierce give bond as an indemnity and security to the plaintiffs, if the injunction should bo dissolved, in the place of, and as a substitute for the bond declared upon; that in pursuance oi the order, bond was given, with sureties, in the penal sum of one thousand five hundred dollars, conditioned to be void if the injunction was dissolved, which bond was delivered and accepted in place ofj and as a substitute for, the bond declared upon.
    2. That the decree dismissing the bill of injunction was against the complainants therein for costs only,'without further *or- [337 der, and that the defendants have since paid the costs in full of the decree.
    To these pleas there is a general demurrer which is joined.
    C. Pease, for the plaintiff.
    The first plea we hold insufficient, because the order of the court to give additional security did not vacate, satisfy, or cancel the first bond; nor can the court, by a mere order, cancel the deed of a party; it can be done only by the act of the obligee, expressly releasing or otherwise canceling it.
    But if this were otherwise, I see no reason why the first bond should be vacated by the second, anymore than'special bail by appeal bail, or appeal bail by bail on an injunction; they are additional security; and what principle of law; justice, or equity forbids holding both bonds in force, when the united penalties' might be insufficient to indemnify the injured party?
    
      But, certainly, to make the second bond a satisfaction of the first, it ought to be accepted as such by the obligee; this he has not done. It does not appear from the plea who accepted it, but the inference is that the clerk did it. This can not destroy the right of the obligee, nor can there be a tacit acquiescence, because the order was made at the October term, 1831, and ought to have been immediately complied with as a condition precedent to the continuing of the injunction, but it was shuffled off to the 15th of February following, as appears by the plea. The obligees had no opportunity to make any obligations until the spring ¡session of the court, when it would have been perfectly useless to .set up a clamor about an insufficient bond, after the other party, by his chicanery, had obtained his object of continuing the injunction.
    A debt may be merged in a higher security taken for the same ■debt, but not extinguished, for it exists in the new security; but a debt can not be merged or extinguished by taking a new obligation, when that new obligation is designed for additional security, and not the satisfaction of a liquidated debt.
    The second plea is insufficient, because it does not answer the whole declaration ; it makes no answer to the damages sustained in consequence of the injunction, which is the gist of the action. 338] It neither denies, nor confesses, and avoids *them. Now, if it is competent to secure by an injunction-bond a compensation for the damages which a party may sustain by reason of an unjust* .and vexatious injunction (and who can doubt the equity, policy, or legality of such security), then the bond in suit is one which deserves the countenance of the law. The plea, that they have paid the costs decreed, is no answer to our claim for a compensation for damages.
    The subject of consequential damages was not before the court of chancery; there was no allegation in any part of the pleadings or proceeding by which that subject was in issue, or presented to the’ notice of the court. It was no part of the case, although a ■consequence resulting from those proceedings. It is provided for by contract, and the remedy is plain and adequate at law.
    In what manner should chancery proceed? Should they, on the suggestion of the defendant that he had sustained damage, refer the matter to the master to take evidence and report upon whatever happened to appear, without any statement of facts or pleadings to guide him? When will it terminate? The damages may be constantly accruing. If referred to a master, he can not report in advance, before the damages have accrued, and what accrues after taking the evidence and before the decree would not be provided for, unless the master was directed to make supplemental inquiries, and then he could n.eyer undertake his case. If the court should direct a supplemental or cross-bill to be filed, stating the facts which constitute the damages, and a new series of pleadings to bring the matter fairly, and understandingly before the court, shall the injunction-bond be made part.of the case and the sureties brought in as new parties? If so, it will be a new way of giving chancery jurisdiction in actions of debt, and would, in fact, be a new case with the parties reversed. If proceeding against the original complainant aloné is had tó get the damages assessed by a master, in order to bring suit at law on the bond to •charge the securities, this would be no great saving of time, or expense, or multiplicity of actions; and, it may be asked, would the securities be bound by such an assessment of damages, or could they claim their constitutional right of a trial by jury? Such a course of proceedings would be novel and absurd in the extreme. The damages, although a consequence of the chancery proceedings, are totally de hors the case. They form a new and distinct subject of controversy, in form ex contractu, *for which the law [339 furnishes a complete and adequate remedy, and a jury is the proper tribunal to decide the facts and assess the damages.
    
    P. Hitchcock, for defendant:
    The first question raised by the pleadings in this case, is, whether the declaration of the plaintiffs is sufficient in law ? In this state the most material rules of practice, both in law and chancery, are established by statute. If, in any respect, these rules are variant from the English rules, the latter must give way. Either in chancery or at law, a cause may be removed from the common pleas to the Supreme Court, by appeal. But the appellant is required to give bond with security to the opposite party. The condition of this bond makes the obligors liable for the amount of the decree or judgment in the Supreme Court, upon tho contingency that the appellant fail to satisfy the judgment or decree. tinder what circumstances, then, or at what time will the obligor have a right of action upon the bond? It was formerly held that he might have an action immediately upon the rendition of the judgment or decree, and it is still so held with respect to a bond, conditioned to prosecute a writ of error. 5 Ohio, 175. The legislature, however, considering it unjust that bail should be made liable, while the principal was perfectly responsible, in the session of 1826 and 1824, enacted, that before suit should be brought upon such bond, an execution should be issued against the appellant, and if, upon the return of said execution, it should appear that the principal person, against whom the judgment or decree was entered, has not property from which the same could be satisfied, then suit might be commenced upon the bond. Chase’s Ohio L. 1302. A similar provision is found in the revised laws of 1831; 29 Ohio L. 108.
    This law was intended to correct an evil supposed to exist in practice, of sustaining suits upon appeal bonds, before an effort had been made to obtain payment from the principal debtor. Declarations upon appeal bonds, previous to the enactment of this law, were required to set forth not only the bond, but the judgment; it seems to me to follow, that since 1823, it is necessary to set forth that an execution has been issued and returned no goods, chatties, lands, or tenements. The law says, that this “shall" be done, and the fact that it has been done, constitutes a part of the plaintiff’s right or title to recover.
    *1 am aware that special bail is not liable until a ca. sa. has been returned non est. And I am further aware that it is a point which has been much controverted, whether it should be alleged in the declaration against special bail; that the return of non est had been made upon a ca. sa.; or whether it would be matter of defense that it had not been done. Should the court, incline to the opinion, that such would be merely matter of defense, it can make no difference as to the proper form of action upon an appeal bond. This bond is required by a-statute, which provides that no suit shall be commenced upon it, until there has been an execution, and a return of no goods, etc.
    If I am correct with respect to appeal bonds, the same rule applies to injunction bonds. Both are put upon the same footing by the legislature, and I presume will not be separated by the court. Before suit can be sustained upon either, an effort must be made by execution to enforce the judgment or decree. In this case, although the suit is upon an injunction bond, there is no allegation in the declaration that any effort has’ been made to enforce the decree, nor is there even an allegation that the principal debtor has, in any respect,, failed or refused to comply therewith. And should a judgment be entered for the penalty of the bond, that judgment would be discharged by a compliance with the original obligor in the Supreme Court, and the payment of the costs of this suit, 29 Ohio L. 108. From these considerations, I insist that the declaration is defective, and shows no right of action.
    It is argued that section 27 of the judgment and execution law, applies only to bonds given to stay proceedings on judgments at law. What is the language ? “ In all cases where judgment shall be rendered in the Supreme Court against the appellant, or an injunction dissolved in the court of common pleas or Supreme Court, the successful party shall, before he brings suit upon the appeal or injunction bond, issue execution against the principal debtor,” etc. The legislature have said in “all cases." Where does the counsel for the plaintiff find authority to interpolate between the words “injunction” and “dissolved,” the words “to stay proceeding upon a judgment at law.” Is it in the expression that “ execution shall issue against the principal debtor?” If any inference could be drawn favorable to the interpolation from these words, it is ^rebutted- by a subsequent clause of the [341 section, which provides that, even after judgment rendered upon the bond, that judgment “shall be discharged by the payment of the original judgment or decree,” etc. But no such inference can, with fairness, be drawn. After a decree, either for the payment of money, or the payment of costs, the individual against whom the decree is made, becomes a debtor. He is “ the principal debtor,” and against him the execution must issue.
    The whole subject of injunctions is provided for in the act regulating the practice in chancery, .commencing at section 41 and closing at section 50, 29 Ohio L. 87. But a careful examination of all these sections will show that there is nothing to interfere-with the construction I insist should be given to section 27 of the act regulating judgments and executions. It is true, that by these sections no bond is absolutely required, except where the object is to stay proceedings at law. But section 50, which authorizes the judges to allow injunctions where it is usual for courts to-interfere in this way, authorizes it to be done upon such eonditions as the judges making the allowance may think proper to prescribe. And if the condition prescribed is, that a bond shall be executed, the bond thus executed becomes an injunction bond, and the obligors must be made liable in the same manner with ■other obligors who have signed injunction bonds.
    If I am right, with respect to the declaration, there is an end of the case; but as the court may differ from me in this, it is proper for me to proceed to the consideration of the pleas.
    The first plea alleges, that during the pendency of the case in ■chancery, to wit: at the October term, 1831, of the court of common pleas, the court, as a condition upon which the injunction ■■should be continued, made an order that the complainant in chancery should enter into bond with security, to be approved by the ■clerk of the court, in the penal sum of fifteen hundred dollars, “in place of, and as a substitute for ” the writing originally executed, and upon which this suit is brought, etc.; and that the defendant did enter into.and execute such bond as was directed by the court.
    Now, it seems to me that the only question presented by the demurrer to this plea, is whether a court of chancery has power to make an order or decree like the one therein named? If the court possesses the power, then the plea is sufficient. If not, the plea is no defense.
    *Mv friend, Judge Pease, can not have examined this plea with his usual sagacity. He speaks of an order of court, to give “ additional security.” No such order is stated. The order set forth is an order that the complainant should enter into bond, “in place of, and as a substitute ” for the one originally executed. The only object of the court seems to have been to compel the complainant to give a bond in a larger amount, not as an additional se■curity,but as a substitute forthe security previously given. Whether it was or was not necessary that the second bond should vacate the first, is out of the question. So long as it was given as a “ substitute” for it, it must have that effect.
    It is objected to this plea, that it contains no allegation that the second bond was received by the obligor in satisfaction of the first. To this I reply that such was not the order of the court. As between two individuals, it may be admitted that the second bond must be received in satisfaction of the first before it will operate .as a bar; but this case is entirely different. It is not a matter of contract between two parties. Yiew it in whatever aspect we may, it is a question with respect to the power of a court of chancery.
    I agree, that although it is the peculiar province of chancery to order contracts between parties, when a proper case is made, to be given up and canceled, yet it would be an arbitrary act of power to order this to be done without sufficient cause. And as we are bound to believe it will not be done without such cause, it is, perhaps, not going too far to say that it can not. But an injunction bond, as in this case, is entirely different from the ordinary case of a bond given by one person to another in the course of business. It is not delivered to the obligor, nor does it in fact become his until there is a final disposition of the injunction. It remains in the custody of the officer of the court, and may or may not become available to the obligor, according to circumstances. There may be a change of circumstances which would require a bond for a greater amount, and may not the court order it? Another change may render it proper that the amount should be less, and may it not be reduced ? And, if the amount is increased, must the new bond be “additional ” and not as a “substitute? ” Suppose the case should be such that the defendant in chancery should move for an increase of the bond and the court should make the order, can he afterward complain that^tbe [343 order is wrong, as interfering with the contract ? And, therefore, that a bond given at his own request shall not operate as a substitute, but merely as additional security? There seems to be some absurdity in such a course of 'reasoning. If, in any possible case, the court might make such an order, it will be presumed that ease has occurred in the present instance. In other words, this court will not presume that the court of common pleas have done wrong when, by possibility, they may have done right. But, in principle, I can see no objection to this course of practice. The bond is, at most, but a part of the proceedings, and, like the other proceedings, is within the control of the court. It is not required by statute, but merely at the discretion of the judge allowing the injunction. Where the injunction is to stay proceedings at law, the amount of the bond is fixed.by statute, and the court or the judge making the allowance could not fix upon a less sum. But even in such case, if there should .be any doubt as to the security first taken, there can be no question but the court might and would, on motion, and as a condition for continuing the injunction, order that new security should be given, which, when given, would operate to discharge the old.
    The second plea sets forth in substance, that after decree made in the original case in chancery, the defendant complied with and performed that decree as by the condition of his bond he waa bound to do.
    This plea again presents' the question which I have discussed upon the insufficiency Of the declaration. If under section 27, of the judgment and execution law, a compliance with the decree would discharge a judgment rendered for the penalty of an injunction-bond, surely such compliance before suit brought, must be a bar to any action upon the bond, and if so, this plea is sufficient.
    It is objected, however, that this plea does not answer the whole declaration. The plaintiffs seek to recover damages for loses sustained, as they say, in consequence of the chancery proceedings, and as to these damages the plea says nothing. Was it necessary ?' Take the ordinary case of an injunction to stay proceeding at law. The creditor may have sustained damages in consequence of being delayed in the collection of his money — damages far exceeding the amount of debt, interest, and penalty. Tet he can recover nothing beyond this — nothing in this state, beyond what has been 344] decreed him by *the' chancery -court. In this case, it is possible that the plaintiffs may have sustained damages, beyond the amount of the costs decreed to them in the original suit; but since that decree has been made and complied with, can they recover those damages? We suppose, that if such damages were sustained, the fact should be ascertained and the amount liquidated by the chancellor, and a decree entered accordingly. This amount would have been secured by the bond, and in a suit upon it, the decree would be conclusive as to the sums for which execution should issue.
    Counsel for the plaintiffs entertain the notion that these damages are to be recovered in a distinct suit, brought upon the bond, and in which no reference can be had to the original chancery proceeding, any further than to ascertain whether the injunction has or has not been dissolved; and something is said about the “ absurdity ” of a chancellor’s inquiring into the amount of damages a man may have sustained. I will not say that there is absurdity in the course proposed by the other side, but it strikes me there is difficulty in it. The condition of the bond is not only that the complainants in chancery shall indemnify the opposite .party against losses, but that they shall comply with the decree of the court. In declaring upon such a bond it would be necessary to mingle matters of record with matters in pais, which might, by possibility, create confusion. I do not perceive the force of the remark, that a “ master could never overtake his case,” or how there would be any more difficulty in his doing it than there would be with a jury. The injury is complete when the injunction is dissolved, and when this is done the extent of that injury can be ascertained either by a jury or by a master.
    The whole matter is resolved into a question of practice, and that course should be adopted which will lead to the most speedy and complete attainment of justice, always being careful, however, that no positive rule of law is violated.
    When a case is before a chancello!’, propriety requires that anything and everything therewith connected, should so far as can be done, be settled by him, and the rights oí all concerned ascertained. Take then a case like the present.- An injunction is allowed to prevent a person from doing a particular act. But as the party to be restrained may sustain a loss, in consequence of that restraint, the opposite party is required to give bond conditioned 345] to indemnify him against such loss. ^Eventually this injunction is dissolved. Can not the chancellor enter such decree as will, in connection with the bond, indemnify the party upon whom the injunction operated ? The only objection is, that damages can not with propriety be ascertained in chancery. True, if the original object had been to recover damages. In such case the ■court would have no jurisdiction. But the case being properly before the court, there is sufficient power vested in the court to do what equity requires. If damages have been sustained, a master can ascertain how much. If this be not the most eligible course, the case can be sent to a jury under a feigned issue for the purpose of informing the conscience of the chancellor. And in either way right and justice will be done.
    Pease, in reply, contended :
    That section 27 of the statute has reference only to decrees for the dissolu tion of injunctions against judgments at law, particularly those provided for in section 44 of the chancery act. Against whom, he asked, must the execution issue by virtue of said section 27? The principal debtor. What is meant by the principal debtor? Surely not a complainant against whom costs alone have been decreed.
    The provisions for allowing injunctions are all contained in those sections of the chancery act cited by Judge Hitchcock. Sections 41 and 42 provide for staying waste and judgments at law; 43 requires bonds; 44 what decree to be rendered; 48 and 49 punish the defendant for disobedience; 50 allows injunctions in all proper cases on equitable terms and conditions; and section 3-gives the courts full power to establish all proper rules and regulations.
    I can find no rules laid down in our statutes, by which the defendant in chancery can have any specific redress for the damages sustained in consequence of an injunction to stay waste, to prevent the sale of lands, or to collect rents, to build houses, mills, or do any other ordinary business, by which he sustains a loss. And why is it not done ? The answer is obvious. The principles of the common law are amply sufficient to give the adequate and appropriate redress by a suit upon the injunction bond. The whole case will be spread before the court by the pleadings, by which they will be informed what facts are in issue to be tried. And. the legislature must have considered it the safest course to leave 346] the parties in all such eases to their *remedy at law. It is more beneficial for the securities, as they have an equal chance with the principal in making a defense, which they might not. have if the principal is first to be tried, and the securities only brought in afterward to foot the bill.
    If this is orthodox doctrine, why delay a suit on the bond to recover the damages which have accrued, and to which the obligee has a just right from the moment the injunction is dissolved, until an attempt can be made by execution to collect a bill of costs, which may not amount to the hundredth part of the damages, especially when the plaintiff claims nothing on account of the-costs, and which attempt may be defeated by the complainant by paying off the costs before execution ?
    Counsel endeavor to sustain the first plea upon the strength of certain expressions set forth in the order of court, that the new bond should be “in place of and as a substitute for” the bond in-suit Should the court think this sufficient to sustain the first pica, we have humbly to ask leave of the court to reply thereto, for the plain and simple reason, that the order of court is a very different thing and contains no such expressions, nor would it, if they had made profert of it, as they ought to have done, sustained their plea; but I can hardly believe the court will sanction such doctrine. . '
    When the first bond was given and the injunction granted, the injunction was the consideration of the bond and the obligee being restrained in his natural and legal rights, became interested therein the obligation was his property. From that moment he had a vested right, which it was not in the power of the court to divest him of upon a mere order without his consent. It is not like a recognizance of bail, which is matter of record and the act of the court. This is a contract, the act and deed of the obligors. How often has the Supreme Court, when an appellant wanted to introduce his appeal bail as a witness, and offered to substitute other and better bail in his place, refused the application on the ground that it was out of their power to cancel a bond as they might a recognizance.
    How appears this proceeding by the plea? The court ordered a continuance of the injunction, on condition of the complainant giving a bond of fifteen hundred dollars as an indemnity and security to the respondents, to the acceptance of clerk, etc., which was delivered to and accepted by the clerk and no one else.
    If it is not competent for the court to cancel a bond without the obligee’s consent, without a bill filed for the purpose, and if *they can not constitute the clerk of the court his agent to [347 do it for him, then this bond is not canceled. Besides, as I stated in opening, it does not appear that the order of court was complied with. The court can not from anything stated in the plea, ascertain whether the second bond was any indemnity or security to the defendants in ohancery; .they will not take the defendant’s legal conclusions, but judge for themselves from the facts stated; the tenor and condition of the bond ought, therefore, to have been set out.
    The order to continue the injunction, must have been made at the instance of the complainant; but whether the condition annexed to it proceeded from the application of the defendant or the kind and provident care of the court, does not appear, nor is it any way material, especially sinoe it has not been complied with.
   Judge Wright

delivered the opinion of the court:

The first question discussed involves the inquiry, whether a suit upon an injunction-bond can be sustained without averring that execution bad issued against the principal debtor, for the sum claimed. By section 27 of the act regulating judgments and executions, 29 Ohio L. 108 (identical with the act in force when this bond was taken, 2 Oh. O. Stat. 1302), it is provided, that in all cases where judgment shall be rendered in the Supreme Court against the appellant, or an injunction is dissolved, the successful party shall, before he brings suit upon the appeal or injunction bond, issue execution against the principal debtor; and if it appear by the return, that he has not sufficient to satisfy the execution, he may then commence suit upon the injunction bond, and take judgment for the penalty, which maybe discharged on the payment of the original judgment or decree, with interest and costs. It is urged that the provision so changes the common law rule, that a declaration upon an injunction bond does not show a right in the plaintiff to sue, unless it contain an averment that execution has been issued and has been returned.

What class of eases was in the contemplation of the general assembly in enacting this law? Evidently those where the relation of creditor and debtor subsisted, and as to which a judgment or decree was had on which an execution might issue. The provisions requiring an execution against the principal debtor, and for 348] discharging the bond on paying the original ^judgment or decree with interest and costs, make this clear to our minds ; but they do not stand alone. The chancery act contains express provisions for three classes of injunction. 1. To stay waste. 2. To stay proceedings at law, before or after judgment, 29 Ohio L. 87. 3. In all other cases where it is usual for courts of equity to interfere by injunction, 29 Ohio L. 89.

There is no limitations in our statutes upon the issue of the first class of injunctions, and their issue is regulated by the common usage of chancery. In the second class, it is provided, that the injunction shall not operate until bond be given with security conditioned for the payment of all money and costs due or to become due in the. suit or judgment enjoined, and all moneys decreed against the complainant in case the injunction be dissolved; and if the suit enjoined was for the recovery of money only, the court on dissolving the injunction is required to decree the plaintiff at law the amount he received, at law, with interest and costs and five per cent, penalty. The court in allowing the last class of injunctions (which embraces the one in controversy), is authorized to impose such conditions upon parties obtaining them, as shall seem equitable. Our chancery courts are authorized to enforce compliance with their decrees for the payment of money by the common process of execution issued by the courts of law. Where the injunction operates upon a money demand and delays its payment, it is without effect, except security be given for the debt, and the costs to accrue with interest, in a penalty to cover contingencies. When the party was so abundantly secured, the legislature seemed to think a slight protection to the security called for, and provided that in case the bond become forfeit, the obligee should, as he had a judgment already against the person in equity bound to pay, first take his execution against him, exhaust his property, if he had any, and only resort to the bond, by suit against the security, in case of failure to make the money. Bonds given under our laws to remove causes from the courts of common pleas, after judgment, by appeal to the Supreme Court, are required as seeuritj'- for the judgment to be recovered in the appellate court. The injunction and the appeal both operate to delay creditors, in cases where the amount has been reduced to certainty by judgment, and is capable of execution by the usual process. These two cases were, therefore, not only on the same footing in reason and the nature of things, but, in our understanding, are *the only two classes em- [349 braced in section 27 of the judgment and execution law referred to. By no other construction can we give effect to the obvious intention of the legislature. This view is strengthened by the consideration that suits on appeal and injunction bonds are coupled together in the section; that it is required, upon judgment recovered in the appeal case, on dissolution of the injunction, where judgment had been before recovered, and execution stayed, that execution shall be first issued against the principal debtor. This can not have been intended to embrace a case of injunction -to stay waste, or any other kind of injunction than one restraininga recovery at law, because, in such case, there would be no judgment upon which to issue execution. But it is urged that the legislature has expressly provided that in all cases of injunction or appeal, the execution shall issue against the principal debtor, and that it would oppose the plain and obvious meaning of the words used, to limit them so as to except any case from the general provision. The proper answer to this is, that courts are not to presume the legislature intend to require an impossible, vain, or useless thing to be done; or impose a limitation to the remedy upon a legal obligation, that would defeat the very object for which it was exe cuted. It would be useless, „if not legally impossible, to issue execution when there was no judgment or decree; and if without execution, the obligee of an injunction bond is without remedy, the only object of the bond, security to a party from damage by the injunction, is defeated. "We, therefore, construe the act as if it read, in all cases of injunctions where there is a judgment at law, or deci’ee for a sum certain, an execution shall issue on the judgment or decree before suit is brought upon the bond.

The distinguished counsel, who has argued this cause for the defendants, seems himself pressed with the difficulties of the construction he advocates. The statute expressly provides for the-discharge of the injunction bond in the cases contemplated upon the payment of the original judgment or decree. It would seem to follow that cases, where there was no original judgment or decree, were not within the view of the law-maker. Yet the law authorizes injunctions in cases where there is no original' judgment or decree, upon such conditions as shall seem to the court equitable. It seemed to the court of common pleas equitable to allow the injunction in the case under consideration, upon bond S50] and surety, to indemnify the enjoined *party from injury to result from the interruption of his business, in case it should be adjudged by the court that he was right. The injunction is dissolved, and no other decree is rendered than simply a decree for the costs of the suit, which are paid. The injury against which the bond was intended as indemnity, is collateral to the inquiry in. the injunction suit, and remains unnoticed in the decree.

Counsel admits it possible that in such cases injury maybe sustained beyond the costs, but urges that, inasmuch as they were not included in the decree, it is too late to ascertain and recover their amount in the suit on the bond. It is, indeed, the usual method of ascertaining the extent of injury in the common law courts; but if one of the conditions of the bond sued upon, refer to an injunction allowed by a chancellor, the rule, it is urged, is to be departed from.. To avoid the palpable injustice of limiting such bonds to the mere payment of taxable costs, to the exclusion of the principal matter intended to be secured, it is urged that they must be-assessed by the chancellor with the aid of a master or a jury, and a decree entered for the amount, and execution issued before resort can be had to the bond. This method is unusual. It is less convenient to assess damages in chancery than at law. It would seem less just to the security on the injunction to assess the amount to be recovered of him, in the chancery suit to which he is not a party, and thus conclude him, than to leave the question open and offer him an opportunity to litigate, and see that the amount is fairly and truly adjusted in the suit on the bond to which he is a party. Besides, th e matter is not within the case made in the proceedings and issues, and if inquired into, would require a new and supplemental proceeding. If, therefore, we were to admit that the chancellor might have pursued the course suggested (though upon that point we do not intend to express an opinion) the objection by sureties, that a course of proceeding least advantageous-to themselves had not been pursued, would challenge little favor. Moreover, the law does not require of the chancellor to assess damages in such cases; it is unusual and inconvenient to do so; it was not done in the case under consideration. The court, adopting the common usage of chancery, dissolved the injunction, and left the parties interested to litigate and adjust the matter at law. In doing so, we suppose the rights of the parties to the bond were not effected, but left to be governed by the rules of the common law.

*The next question arises upon the third plea. It sets up [351 as a bar to the suit the payment of the costs decreed in the chancery suit. If we are right in the view taken of the declaration, that it is not essential to the plaintiff’s title for him to aver the issue of an execution against the principal obligor, then the matter of this plea does not reach the entire action, but looks only to a portion of it. It is not directed to either breach assigned, and of course, if it neither answers the right set up in the declaration, the execution and legal obligation of the bond, it must answer the breaches assigned, or one of them, or be bad as a bar. The breach is, that the injunction was dissolved and the parties injured by the loss of labor and materials. It is no answer to this to say the obligor paid the costs decreed, paid a sum which it is not urged he withholds.

The remaining question regards the sufficiency of the first plea, which is, in substance, that while the chancery suit was still pending after the date of the bond declared upon, the court continued the injunction upon condition that another bond should be given in a larger sum, as an indemnity to the respondents, in “ the place of, and as a substitute ” for the one declared upon, which was so delivered and accepted. Counsel for the plaintiffs argue, upon this order for a new bond, as if it was described to be for mere additional security. It is not so. The allegation is, that the order was made and the new bond delivered and accepted as a substitute for the first one. If the court had power to make the order for a new bond, it was in fact delivered and accepted as a substitute for the old one, and we do not perceive how the old bond can be held obligatory. We deem it within the province of a chancellor, in continuing an injunction, to require additional, or new security, or a bond with new and enlarged conditions, calculated completely to indemnify the parties affected, if the injunction bo finally adjudged to have been allowed without right. Having the control of the papers and parties in the ease, the most familiar province of a chancellor is to do complete justice between the parties, and power can not be denied in making the interlocutory order preliminary to the final decree short of what is yielded to him in pronouncing the final decree.

But it is said the court has not the power to accept the second bond as a satisfaction of the first, that none but the obligee, the person having the legal interest in it, can discharge it. So far •352] from this being true, we all know it to be *an undisputed head of equity jurisdiction to order the surrender of deeds and other instruments, to cancel them against the will of the obligee, and to compel obedience to the order by imprisonment, if need be. The plea asserts the order for the bond to be one for a substitute, .and the acceptance of the second bond to have been in lieu of the first. This the demurrer ‘admits to be true. If, therefore, such order could be legally made, and the bond was executed and accepted according to the order, the question is at rest. It is said the acceptance is averred to have been by the clerk, and not by the obligee. That is true, and such was the order of the chancellor-as set out, to give to the acceptance of the clerk, and the fact •does not affect the case.

It is still further objected to this plea, that it alleges the order made at October term, 1831, as a condition precedent to the continuance of the injunction, and the bond not executed until Febary following, and therefore the bond was not given in compliance with the order. This objection supposes this court can take judicial notice of the length of the October term of the common pleas in 1831. How can we know the term, commencing in October, did not continue until February ? By the allegations of agree - ment of the parties to the suit, we have neither in the case before us. If such, however, was the decretal order, the objection would fail for the reason given, and for another one, that the plea avers-the bond was given in compliance with the decree. If the factsvaryfrom those alleged in the plea admitted true by the demurrer, the plaintiff must open some other way for considering the objection than the one before us.

We think the declaration and the first plea of the defendant good. The second plea we hold to be bad. But the plaintiff has-demurred jointly to both pleas, and as one is good, the rule in such cases overrules the demurrer, and entitles the adverse parties to a judgment. There is, however, an application for leave to amend. Leave is giyen the plaintiff to withdraw his demurrer, and reply on paying all the costs since filing the demurrer.  