
    *White v. Clay’s Ex’ors.
    January, 1836,
    Richmond.
    (Absent Brockenbrotjgh, J.)
    Injunction Bond — Condition—Effect of Total or Partial Dissolution. — The condition of an injunction bond is broken by a dissolution of the injunction in part, as well as by a total dissolution; so that an action lies on the bond, whether the in j unction be partly or wholly dissolved.
    Two issues — Jury Sworn to Try “Issue” — Verdict Responsive to Both Issues — Effect.-—There being two issues joined in an action, the jury is sworn to try the issue; but they And a verdict responsive to both issues: the misprision of charging the jury to try the issue, is immaterial.
    Pleading — Right of Defendant to Object to Same Fault in Plaintiff’s Pleading When He Committed First Fault — Pleas—Conclusion.—To debt on an injunction bond, defendant pleads, that the injunction cause is still pending on a bill of review in the court of appeals, concluding with a verification; plaintiff replies, that the bill of review mentioned in the plea has been decided by the court of appeals, concludingto the country; and issue joined; Held, 1. the first fault in pleading, if fault it was, having been committed by defendant, he cannot complain of the same fault in the pleading of plaintiff; but 2. it was not necessary in such case to conclude to the court, with a verification by the record.'
    Evidence — Necessity for Production of Whole Record. —On the trial of an action of debt on an injunction bond, extracts from the record of the injunction cause, of the decrees in the cause, are competent and sufficient evidence, without producing the whole record.
    Injunction Bond — Failure to Strictly Pursue Statute— Bffect. — An injunction bond not strictly pursuing the directions of the statute, yet held a good statutory bond.
    Debt upon an injunction bond, by Clay’s executors against White and Dowell his surety, in the circuit court of Pittsylvania.
    The declaration claimed ^6S0. the penalty of the bond, and, after alleging the execution and making profert thereof, set out the condition in hasc verba; which, reciting that the said White had obtained from the judge of the superiour court of chancery of Dynchburg, an injunction to stay, until further order of that court, all proceedings on a judgment of the circuit court of Pittsylvania Recovered by Clay’s executors against him and P. S. his surety, on a forthcoming bond for A613. 7. 6. and costs, to be discharged by the payment of .£306. 13. 9. with interest from the 6th November 1816 and the costs, —-bound White and Dovell his surety, ‘ ‘to pay and satisfy the judgment of the circuit court of Pittsylvania, and all such costs as should be awarded against him by the court of chancery, and all such damages as should be incurred by White, in case the injunction should be dissolvedand then the declaration, assigning the breach of the condition, alleged that the injunction was dissolved by the court of chancery in part (as to all but the sum of £36.) to wit, on the ISth October 1819, and Clay’s executors recovered their costs there; that White appealed from the decree to the court of appeals, which affirmed the same, to wit, on the 9th November 182S; so that on the last mentioned day, the injunction was finally dissolved, and White was decreed to pay Clay’s executors their costs in the court of chancery ; and that White also incurred ten per centum per annum damages on that part of the judgment injoined for which the injunction had been dissolved, to be computed from the 16th May 1817 [the date of the injunction awarded] to the 9th November 1825 [the day it was finally dissolved] ; yet White and Coveil his surety had not paid to Clay’s executors the amount of the judgment of the circuit court of Pittsylvania, or the costs of the court of chancery, or the damages incurred by White upon the dissolution of the injunction. Whereby right and action accrued to the plaintiffs to demand the penalty of the injunction bond, yet the defendants, though often thereto requested, had not paid the same &c.
    The defendants, taking oyer of the bond and condition, pleaded, 1. Conditions performed, on which an issue was made up. 2. That the cause alleged in the declaration to have been decided in the court of appeals in affirmance of the decree of the court of chancery *'of I/ynchburg, was still pending on a bill of review; and this they were ready to verify. To this plea the plaintiffs replied, that the bill of review mentioned in the plea had been decided in the court of appeals, concluding to the country. And the defendants joined issue.
    The jury was sworn to try the issue (not issues) joined.
    At the trial, the defendants filed exceptions to an opinion of the court; from which it appeared, that the plaintiffs offered in evidence copies of sundry orders of the court of chancery extracted from the record (without producing the whole record of the case in which they were made) which shewed, 1. that an injunction was awarded for the defendant White, in May 1817, to stay proceedings on the judgment which the plaintiffs had recovered on a forthcoming bond, against him and his surety, in the circuit court of Pittsylvania, on the usual terms, that White should release errors at law, and give an injunction bond with surety, with such condition as the law required ; 2. that this injunction was, on the 15th October 1819, dissolved except as to the sum of ¿36. and White’s bill dismissed with costs, from which decree he prayed an appeal (but, for aught that appeared, never prosecuted it); 3. that on the 13th October 1820, White prayed leave to file a bill of review of the decree of October 1819, which the court of chancery refused, from which refusal White prayed an appeal, and prosecuted it; 4. that on the 9th November 1825, the court of appeals affirmed the order of the 13th October 1820, refusing to allow the bill of review; and 5. that this decree of affirmance was entered in the court of chancery in May 1826. Whereupon, the defendants objected to the admission of the extracts as evidence; but the court overruled the objection; and the defendants excepted.
    There was a verdict and judgment for the plaintiffs, for ^650. to be discharged by the payment of 1694 ^'dollars, with interest &c. and the costs &c. to which this court, upon the petition of White, allowed him a supersedeas.
    Johnson, for the plaintiff in error, contended, 1. That the injunction bond was not forfeited by the partial dissolution of the injunction. He referred to the statute 1 Sev. Code, ch. 66, § 114, p. 218, requiring a party obtaining an injunction to a judgment at law, to give bond with surety, for paying all money and costs due or to become due to the plaintiff at law, and all such costs and damages as shall be awarded against him, in case the injunction shall be dissolved : and he argued, that the statute meant, in fair construction, that the bond should be forfeited only in case of a total dissolution of the injunction. An injunction could not be said to be dissolved, when it was in part perpetuated. And the condition of the bond required by the statute, was, that in case of the dissolution of the injunction, the party should pay all the money and all the costs due to the plaintiff at law, and also all such costs and damages as should be awarded against him; which could not have been required as the consequence of a dissolution in part. He referred to the cases of Woodson v. Johns, 3 Munf. 230; Gray v. Campbell, Id. 251; Box v. Mountjoy, 6 Munf. 36, for the purpose of shewing, that those decisions did not affect the present question, whether an injunction bond was forfeited by a partial dissolution of the injunction. But whatever was the proper construction of the statute, the condition of this bond did not follow the statute: it was not a statutory bond: and though it Was good as a common law bond, yet it was binding at common law according to the words of the condition. The condition was, that the obligors should pay, not what was due or should become due to the plaintiffs at law, but “the judgment” (the whole judgment) they had recovered at law, in case the injunction ^'should be dissolved; so that, if a partial dissolution of injunction should be held to be a forfeiture of the bond, the obligors are bound by their bond, to pay and satisfy the whole judgment, though the decree of the court relieved them against a part of it.
    2. He objected, that the replication to the second plea was naught, in concluding to the country. The matter pleaded was matter of record, and should have been verified by the record, with a conclusion to the court.
    3. The jury was sworn to try the issue. But it nowise appeared which of the two issues that had been joined, the jury was sworn to try, or which of them it in fact tried.
    4. As to the point stated in the bill of exceptions, he said the court erred in admitting extracts from the record in the injunction cause, to be read in evidence, instead of requiring the whole record to be produced. It appeared by those extracts, that White’s injunction was partially dissolved, on the 15th October 1819, and his bill dismissed, and that he appeared from this decree ; but it did not appear what became of that appeal, and for aught .that appeared, it might be still pending; in which case, there was as yet no dissolution of the injunction. All that further appeared was, that White prayed leave to file a bill of review ; the chancellor refused the leave; White appealed from the order of refusal; and this order was affirmed by the court of appeals on the 9th November 1825. And this last date was stated in the declaration as the date of the dissolution of the injunction, instead of the 15th October 1819, the date of the chancellor’s decree of dissolution, and ten per centum per annum damages were claimed till the latest, instead of the earliest, of those dates. Whether this allegation of the date was true, and the claim to damages just, did not appea* by the extracts from the record. Therefore, not only the general rule of the law of evidence required that the whole record *should be produced, but it was necessary in the particular case, in order to ascertain the exact state of the injunction cause, and the measure of the plaintiffs’ damages.
    Robinson, for the defendants
    in error, maintained, 1. That the forfeiture of an injunction bond was accomplished by a partial as well as a total dissolution of the injunction. The plaintiff in equity was required by the 114th section of the chancery court law, to give bond with condition to pay all money and costs due or to become due to the plaintiff at law, and all costs and damages awarded against him, “in case the injunction be dissolved.” The money due to the plaintiff at law, which the condition of the bond required the plaintiff in equity to pay, was the money found to be due by the chancellor; and so the words “in case the injunction be dissolved,” must of necessity be construed to apply to a partial as well as a total dissolution. Besides, he said, those words were strictly, in themselves, applicable to any case of dissolution, partial or total; and the meaning of them was put beyond doubt by the 61st section of the same statute, relating to the same subject, which provided, that where an injunction “shall be dissolved in whole or in part,” ten' per centum per annum damages shall be paid to the plaintiff at law, from the time the injunction was awarded, “till the dissolution;” expressly applying the general phrase “dissolution” to a partial dissolution of the injunction. As to the condition of this particular bond, he said, its language must be understood secundum subjectam materiam; and though not very accurately penned, it was substantially the condition required by the statute, and it was a good statutory bond; certainly as perfect a statutory bond as the injunction bond in Eox v. Mountjoy, 6 Munf. 36, in which this court held the obligee entitled to recover his damages, thought the bond did not stipulate for the payment of them. But, he added, this objection, if well ^founded, lay to the declaration, and was cause of demurrer; b,ut the declaration was not demurred to; and, by the new statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 512, the verdict cured the defect, whether it was one of form or of substance.
    2.The objection to the replication to the second plea, for concluding to the country instead of the court, was, obviously, just as applicable to the plea as to the replication: if the objection was just, the plea should have concluded with a verification by the record. The alleged fault in pleading was first committed by the defendant. If the replication was faulty, he should have demurred to it; and that would have carried the court back to the first fault in pleading, which was his own. Instead of demurring, he joined the issue tendered by the replication; and so, clearly, this fault in the plaintiffs’ pleading, if fault it was, was cured by the verdict. But, ás the matter pleaded was not the foundation of the action but wholly collateral, it was not necessary that it should be verified by the record. 1 Wms. Saund. 38, n. 3.
    3. In answer to the third objection, he cited Mackey v. Euqua, 3 Call 19; Garland v. Bugg, 1 Hen. & Munf. 374, and Boatright v. Meggs, 4 Munf. 145. The first case was direct to the point, that there being two issues, and the jury being sworn to try the issue, the misprision should be held immaterial after verdict; and, according to the others, in the case of several issues joined, a verdict for the plaintiff must be taken as a finding upon them all.
    4. Did the court err in admitting the extracts from the record, instead of requiring the whole record to be produced? The only questions in issue were, whether the injunction had been dissolved, and whether the bill of review was pending, or not. The material allegation of the declaration was, that the injunction had been dissolved; and the fact of dissolution being alleged ^without a prout patet per recordum, it would have been enough to shew a dissolution of the injunction before the action brought, and any variance between the date alleged and the date proved, would have been immaterial, even if the date had not been alleged under a scilicet; Purcell v. Macnamara, 9 East 157; Phillips v. Shaw, 4 Barn. & Aid. 435; 5 Id. 964; Stoddart v. Palmer, 3 Barn. & Cress. 2; 6 Eng. C. E. Rep. 447; 7 Id. 318; 10 Id. 4; Mowry v. Miller, 3 Leigh 561. Much more was the date immaterial here, where it was alleged under a scilicet; Bynner v. Russel, 1 Bing. 23; 8 Eng. C. L. Rep. 230; Jackson’s adm’r v. Henderson, 3 Leigh 196. Then, as it certainly was not necessary, in the pleading, to allege the dissolution of the injunction, or the decision upon the bill of review, with a prout patet per recordum, so it was not necessary, upon these issues, to produce the whole record to prove those facts, since if the whole record had been produced, it could have shewn nothing at all material to the issues but the decrees of which extracts were offered.
    Johnson, in reply,
    said, that the statutes of jeofails, which had been relied on to obviate his first objection, only cured a defective statement of a good title, whether the defect was one of form or substance; but it had no application to a case in which the pleadings shewed no title or an insufficient one.
    
      
      Injunction Bond — Failure to Follow Statute Strictly —Effect.—Although the condition of the injunction bond is not so extensive, as the statute requires, yet if it contains a material part of the conditions required, the bond is not void, but binds the obligors to the extent of such condition or conditions, and when the bond contains some conditions or provisions not required by the statute, and some of those which are required, it is valid and binding to the extent of the latter. Holliday v. Myers, 11 W. Va. 294, citing Gillespie v. Thompson, 5 Gratt. 132; White v. Clay, 7 Leigh 68; Fox v. Mountjoy, 6 Munf. 36; Pratt v. Wright, 13 Gratt. 175; Gibson v. Beckham, 16 Gratt. 321; Porter v. Daniels, 11 W. Va. 250.
      See also, citing the principal case on. the subject, foot-note to Gibson v. Beckham, 16 Gratt. 321; Claytor v. Anthony, 15 Gratt. 525, dissenting opinion of Snyder, J., in State v. Purcell, 31 W. Va. 66, 67, 5 S. E. Rep. 313. See monographic notes on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518; “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
      Injunctlon Bonds — Total or Partial Dissolution-Effect. — The principal case is cited in Bank of Washington v. Hupp, 10 Gratt. 37, to the point that, the condition of an injunction bond applies to the case of a partial as well as a total dissolution of the injunction. See monographic note on “Injunctions” appended to Clay tor v. Anthony, IB Gratt. 518; also, monographic note on “Statutory Bonds” appended to Goolsby v. Strother. 21 Gratt. 107.
    
    
      
      T wo Issues — Jury Sworn to Try Issue — Verdict Responsive to Both Issues — Effect.—On this question see principal case cited in foot-note to Mackey v. Fuqua, 3 Call 19; Baylor v. Baltimore & O. R. Co., 9 W. Va. 282; First Nat. Bank v. Kimberlands, 16 W. Va. 572.
    
    
      
      Evidence — Necessity for Production of Whole Record. — It is not necessary to produce the whole record of a cause, but so much as is sufficient to prove the fact for which it is offered. For this proposition, the principal case is cited in Wynn v. Harman, 5 Gratt. 166, and foot-note; Masters v. Varner, 5 Gratt. 171 (see note); Cox v. Thomas, 9 Gratt. 325; Richardson v. Prince George Justices, 11 Gratt. 197; Dickinson v. R. Co., 7 W. Va. 413, 414; Sayre v. Edwards, 19 W. Va. 355: Northwestern Bank v. Fleshman, 22 W. Va. 324, 328: Waggoner v. Wolf, 28 W. Va. 824; McClaugherty v. Cooper, 39 W. Va. 313, 19 S. E. Rep. 415; Glenn v. McAllister, 46 Fed. Rep. 885.
    
   CARR, J.

The first question is, whether, in this action upon an injunction bond, it appearing that the injunction was only dissolved in part, the action can be maintained on the bond? I think it may. The words of the statute are, that “a bond shall be given for paying all money or tobacco and costs due or to become due, to the plaintiff in the action at law, and also all such costs and damages as shall be awarded against him, in case the injunction shall be dissolved.” 1 do not think the words of the bond, in this case, differ materially *from the condition required by the statute. I have looked back, and find that the statute now in force, is exactly the same with that passed in 1744, S Hen. stat. at large, p. 241, except that the words “and damages” have been added, since the passing of the statute giving damages on the dissolution of injunctions. Under a law of such long standing, it must very often have happened, that partial dissolutions have taken place, and resort been had to the injunction bond; yet the objection now taken to the action, is, so far as I can find, one never raised before. Being now raised, however, it must be considered. Why is an injunction bond required at all? It is, I presume, because the plaintiff having in his favour the strong evidence of the judgment, it is thought just, that before the defendant shall arrest him in his progress, he shall make perfectly secure to him, not only'the judgment, or so much of it as he shall in-join, but all costs and damages which may arise from the proceeding in equity. If this be the object of the bond, what is the difference in principle, between a partial and a total dissolution? I can see none. It is a difference in amount only. In the case before us, a total dissolution would have left ¿£306. 13. 9. with interest, damages and costs, as the sum secured by the injunction bond, while the partial dissolution left that sum, minus ^36. to be thus secured. But it was said, that when the law enacts, that the debt, damages and costs, shall be paid “in case the injunction be dissolved,” the words tie us up to a total dissolution, because the injunction cannot be said to be dissolved while a part of it remains. This construction would lead to consequences absurd and unjust, such as we ought not lightly to impute to the legislature: for supposing the debt injoined to be ,£1000. if the injunction be dissolved for ,£999. according to his construction, there can be no recovery upon the bond. But I think there is proof in the 61st section of this same statute, *that the legislature did not by dissolution, mean nothing less than a total dissolution. This section enacts substantially, that where an injunction to a judgment shall be dissolved wholly or in part, damages &c. from the time the injunction was awarded, until the dissolution, shall be paid to the party on whose behalf such judgment was obtained, on such sum as appears to be due, including costs; and where such injunction shall be depending in the district court of chancery, the clerk shall, on dissolution thereof, certify &c. Here we find a dissolution in part expressly called a dissolution. We see too, that on a partial dissolution, the party injoining shall pay damages on such sum as appears due, including costs, unless the court before whom the case was heard, shall direct otherwise. Can we imagine, that the same law which inflicts this penalty on the party as to whatever sum he unjustly injoins, could possibly mean to say, that though he had unjustly injoined ^999. out of ,£1000. the bond given to secure the whole should not be forfeited? should furnish no security whatever for the sum really due? I do not think there is any thing in Ihis objection.

The next objection was to the replication to the second plea; that it was naught in concluding to the county instead of the court. The first answer is, that the plea and replication equally refer to a fact of record, the former averring that the cause was still depending, the other that it was decided; if, therefore, it was necessary for the replication to conclude to the court, it was equally so for the plea. But, 2ndly, 1 do not think it was necessary for either so to conclude. The averment on either side was of a matter of fact, namely, whether the cause was depending or decided. The conclusion to the country, was, I think, right. And to prove either pendency or decision of the cause, a mere extract from the record would have been sufficient. To say, that nothing less than the whole of a ^'voluminous record must be exhibited, to prove the simple fact of pendency or decision, would be as inconvenient, as it seems to me unnecessary and unreasonable. But a 3rd and conclusive answer to this objection is, that if the conclusion of the replication was wrong, the defendant ought to have demurred instead of taking issue; and he cannot after verdict avail himself of such an objection.

As to the third objection, that the jury was sworn to try the issue, when there were two issues; it was expressly decided in Mackey v. Euqua, that this is not error.

The last point was that made on the exception to the opinion of the court, permitting the extracts from the decrees and orders in the injunction cause, to go in evidence to the jury, instead of requiring the whole record. I think the objection unfounded. The court was right in admitting the evidence. I cannot think that, in order to prove the simple facts for which these extracts were adduced, and which they clearly prove, it was necessary to produce the whole record, however long. The judgment should be affirmed.

CABELL, J., concurred.

BROOKE, J.

I have no doubt, that the partial dissolution of the injunction, was a forfeiture of the injunction bond; otherwise, a dissolution as to all but the most trivial part of the debt, would absolve the sureties in the injunction bond, and leave the defendant in equity wholly without security as to the principal part of the debt, which the court of chancery as well as the court of law has adjudged to be justly due to him. It was said, that the condition of the bond in this case, is not pursuant to the statute which requires the bond. The answer is, that the statute does not prescribe the form of the bond; and if the bond did no pursue the *statute in terms, the obligors cannot complain. I See no fault in the pleadings, on which the plaintiff in error can found an available objection: for though they are informal, they substantially put the question in issue, whether the bill of review was still pending in the court of appeals, on the appeal from the order of the chancellor refusing to allow the review, after the decree dissolving the injunction, from which decree also ah appeal had been taken. I am also of opinion, that the evidence offered by the plaintiffs below, to repel the averment in the second plea, that the case was still pending in the court of appeals, was proper evidence as far as it went. The matter was collateral to the claim of the plaintiffs on the injunction bond: therefore, it was not necessary, that it should have been pleaded with a verification by the record; and the extracts from the proceedings were sufficient. As to the suggestion, that, for aught that appears, the appeal from the chancellor’s decree dissolving the injunction may be still pending, it is enough to say, that that was not pleaded. And if it had been pleaded, it might have been insisted, that the bill of review, and the appeal from the order refusing to allow it, superseded the appeal from the decree of dissolution: but on this point, as it is not necessary, I give no opinion. I think the judgment should be affirmed.

TUCKER, P.

I am of opinion, that according to the true construction of the statute, an injunction bond taken in pursuance of it, is forfeited by a partial dissolution of the injunction; for the bond is to be taken with condition to pay, not the amount of the judgment at law, but all money and costs due or to become due to the plaintiff; that is, such amount as after the investigation of the case in equity appears to be due to him. The object of the statute was to afford to the creditor security for his demand, when delayed by injunction; and that object was the same, whether the plaintiff in ^equity was indebted to the full amount of the judgment or not. If he unjustly delays his creditor as to any part of his demand, he ought to give security; since it is but fair, that the aid of equity should only be afforded to him, upon the condition that he shall make his adversary safe to the extent of his just demands. Such appears to me to be the plain policy of the law; such too, the fair construction of its language; and such, I believe, has been the universal interpretation placed upon its provisions.

The bond in this case, however, is not in terms, upon condition to pay the amount due or to become due to the plaintiff, but it binds the obligors to pay the amount of the judgment: and it was argued, that by these terms, if the injunction is to be considered as dissolved, the plaintiff must recover the whole, if he recovers at all. Be it so. The injunction is certainly dissolved ; the order originally7 made no longer stands, and if we must stick to the letter, the plaintiff is entitled to judgment for the whole amount. But I am of opinion, we are not to stick to the letter in these statutory bonds, taken by officers- of the courts, without .the supervision of any tribunal, and in the absence of the obligee. The court of chancery awarded the injunction, upon the terms of bond with security being given according to law; that is, as we have just seen, making the security responsible for whatever might eventually be found due. It is fair to presume, that such was the design of the parties, however clumsily it may have been expressed by the officer who prepared the bond. The bond says, indeed, that the obligors shall pay the amount of the judgment, and all such costs as shall be awarded by the court of chancery. We cannot believe the obligors designed to bind themselves to the payment of the whole judgment, if the court should perpetuate the injunction as to part. We must understand it as meaning, that they should be bound to the payment of such part of the judgment as should be awarded to be paid by the court of chancery. *Tt is doing no force to the expression to consider the words “as shall be awarded by the court of chancery” as applying to the judgment as well as the costs; since the plaintiff having submitted the justice of that judgment to the decision of the court of chancery, very naturally designed only to bind himself to pay the amount of the judgment, or such part of it, as according to the award of that court might be found to be due. Upon the whole, I am of opinion, that the plaintiffs’ action is sustainable.

As to the second objection, I am of opinion, that it is urged with an ill grace by the party who was first guilty in his plea, of the very fautt he complains of in the replication. Indeed, it is possible, that in this respect as well as in others, his plea was defective, though the replication be not liable to a like objection. Eor the distinction is, that where the gist of the action or defence is a matter of record, it must be pleaded with a verification by the record; and as, here, the existence of the case in the court of appeals in the gist of the defence, perhaps the record should have been pleaded by him. On this point, however, I give no opinion; feeling assured, that the replication is not defective in this regard. Eor it is also a rule, that where the record is not the gist of the plaintiff’s demand, but merely collateral, it is not necessary that he should plead it. He may give it in evidence. 1 Wms. Saund. 38, n. 3; 2 Id. 344, n. 2; 2 Bac. Abr. Evidence, E. p. 612. Now here, the injunction bond is the foundation of the action, and the fact of dissolution is a collateral matter, which indeed is to be established by a record, but is to be tried by the jury upon the production of the proper record evidence before them. There is, however, a decisive objection to the defendant’s plea in another respect. The declaration sets forth a dissolution of the injunction by an order of the chancellor, affirmed by the court of appeals. The plea in question, instead of ^negativing the fact of dissolution, merely alleges that “the case is still pending on a bill of review;” which it may be, as an original bill, though the order of .dissolution may stand unassailed and unre-versed.

As to the third objection : this court has more than once decided, that if the verdict for the plaintiff answers to all the issues, it shall not be set aside, merely because, by the record, the jury appear to have been sworn to try the issue, when in fact there were several issues made up in the cause. In my opinion, in such a case, the record ought always to have been interpreted to mean, that the jury were sworn to try all the matter in controversy constituting the issues in fact in the cause.

Then as to the last objection. On a mere question of fact as to the dissolution of an injunction, or the pendency of an appeal, I think it would be an abuse to require a complete copy of a voluminous record to be produced. All that is necessary is to produce so much ot the record as satisfactorily establishes the fact in question. This has been done here. The copy of the orders of .the court of chancery shews the dissolution of the injunction, the application for the bill of review, and the refusal of that application ; which last order is that which was affirmed by the court of appeals, as is manifest from comparing the dates. This was all that could be necessary on these issues. 1 Stark. Law Ev. part 2, p. 246; Jones v. Randall, Cowp. 17. Eor, where the fact to be shewn is merely that a decree has been made in the court of chancery, or that a decree made there has been reversed on appeal, proof of the other proceedings will not be necessary, but the adversary party will be at liberty to shew any other matter in the record, which may avoid the effect of that which is introduced. Bull. N. P. 235.

Judgment affirmed.  