
    Patterson and Stafford vs. Stewart and others.
    
    Where an injunction ia abated or dissolved by the death of complainant, judgment upon motion cannot be entered against his security in the injunction bond, under the provisions of the act of 1817, ch. 119, see. 1: if such judgment be entered, it is void.
    On the 25th April, 1829, the complainants filed their bill in the circuit court of Wilson county, to reach the equitable interest which defendant Stewart had to a tract of land of one hundred and ten acres, averring that Stewart had an equitable estate in it; that the legal title was in William New; that Stewart, to defraud his creditors, procured New to take up the old bond and execute anew one to Tazewell Mitchell, the son-in-law of Stewart, and that Stewart was utterly insolvent.
    Stewart, in his defence to this bill, insisted upon the plea of non est factum; that he had signed no bond at all, or if he signed one it was blank, and only intended for the cost; insisting also that the judgment rendered against him on the injunction bond was void. On the 6th November, 1830, he filed his cross bill, insisting that the judgment against him was absolutely null and void, upon the ground that the Chancellor had no power or jurisdiction to render such a judgment. It appeared from the record that a judgment had been recovered against A. Stub-blefield in the county court of Smith, on 16th February, 1815, for .$448; that various fi. fa’s had issued up to the 28th March, 1823, when a levy was made upon the property of said Stubblefield; an order of sale issued, to enjoin which, Stubblefield filed his bill on the 6th August, 1823: he obtained a fiat for an injunction upon the usual condition of giving security to pay all the debt and cost if he failed to prosecute his bill with effect; and on the same day executed a bond before the master, with defendant John Stewart as his surety, in pursuance of the fiat of the judge.
    The record further shows, that at June term, 1824, the death of complainant Stubblefield was suggested; [that at May term, 1825, it being shown to the court that more than two terms had passed and no step had been taken to revive the cause, the court ordered the cause to be abated and the injunction to be dissolved, and gave judgment upon motion against Stewart, the surety in the injunction bond, for the balance of the debt, to wit, $517. No process was served upon Stewart, nor had he any notice of the motion.
    Upon this case the circuit judge was of opinion that the Chancellor had no jurisdiction to give judgment against Stewart; that his judgment was absolutely void, and therefore ordered both the original and cross bill to be dismissed.
    
      J. Rucks, for the complainants.
    I cannot perceive upon what ground the judgment of the Chancellor was void, or even erroneous.
    The suit was properly abated. 1 Hay. Hep. 163:2 Hay. Rep. 163. The liability of the surety was within the very words as well as meaning of the condition of the bond: he was to pay all such parts of the judgment as complainant was not relieved from.
    The object of the legislature was to secure the judgment at law and to shorten litigation.
    No suit at law has been brought upon such a bond since the passage of the act of 1817. It is the invariable, the universal practice to enter judgments upon them by mo{¡on. The law makes it a condition upon which a complainant shall obtain such injunction, to wit, that his surety shall be liable to such a judgment.
    The surety voluntarily comes in and makes himself a party to the suit, and is (quo ad hoc) subject to the order and decree of the court. The judgment creditor loses bis lien upon the property of his debtor, and is often delayed several years by the filing of a bill, and it is right that the substituted surety should be held to an accountability to the full extent of the meaning of the legislature.
    If a man having obtained an injunction dies, and his representative will not revive or prosecute the bill, the court have power to dissolve the injunction and dismiss the bill. If they dissolve the injunction, the act is imperative that judgment shall be entered up against the surety.
    It cannot be argued that the Chancellor has no jurisdiction to render judgment against the surety, for he comes into the court and submits himself to its jurisdiction.
    It is admitted that a judgment may be impeached in a court of chancery for fraud, but not for irregularity.— Thottenkirk vs. Wheeler, 3 John. Ch. Rep. 280.
    In French against Shotwell, (6 John. Ch. Rep. 238} the Chancellor lays it down very strongly, that he could not impeach the validity of a former decree, nor look behind it for any payments; agreeing with Lord Redesdale and C. B. Thompson, that it was of more importance to put an end to litigation, and to preserve the rules of practice, than to do justice in the particular case. See 4 John. Ch. Rep. 85: 2 Dow. Rep. 526. If a scire facias was necessary, still the judgment is not void, but only irregular or erroneous.
    
      W. T. Brown and G. S. Yerger, for the defendants.
    The act of 1817, ch. 119, like all other acts authorizing a judgment upon motion without notice to the party, must receive a strict construction. It is settled, that to authorize the judgment, the case must come within the letter of the statute. Exp&rte Miller, 1 Yerg. Rep. 435.
    Does the act from its words authorize a judgment against the security, where the injunction is dissolved by, and in consequence of the abatement of the suit, by the death of the complainant? The act says, it shall be the duty of the clerk of the court, in' which the injunction shall be dissolved, or final decree made, to enter up judgment against the party obtaining the same and his securities,” &c. The legislature evidently contemplated a joint judgment against both. The judgment," by the words of the act, is to be rendered against the party obtaining the injunction, as well as his security, when the injunction is dissolved. .And as such judgment cannot be rendered against a party when he is dead, the inference is irresistible, that the legislature only intended the judgment to be rendered where the injunction was dissolved upon motion, before the final disposition of the cause, and whilst all the parties were before the court. To authorize this judgment, the language of the act will have to be departed from. A scire facias, according to the act of the same session, ch. 199, sec. 3, ought to have issued against Stewart. In that case he would have notice, and could rely upon any defence allowed to him by the law. The principle laid down by this court, in Exparte Miller, (1 Yerg. Rep. 435) is directly applicable to this case. The judgment in this case being absolutely void for want of jurisdiction of the person of Stewart, the bill of complainant was properly dismissed by the circuit judge.
   Peck, J.

delivered the opinion of the court.

The question in this case turns upon the construction the court shall give to the act of 1817, ch. 119, sec. 1, which provides, “that when any injunction shall be obtained to stay the collection of money on a judgment, and the same shall be dissolved on motion or on the final hearing of the cause, it shall be the duty of the clerk of the court in which the injunction shall be dissolved or nnai decree made, to enter up judgment against the party obtaining the same and his securities, for the amount of the principal, interest and costs, and execution shall issue as in other cases.”

What is the dissolution of the injunction spoken of in the act, which will authorise the judgment? It is argued, and we think correctly, that it is not such dissolution as would follow upon an abatement by the death of the complainant. To understand the act we must look to the practice in our courts of chancery. A motion to dissolve is usually made on the coming in of the answer; it is useless to enquire whether such a motion was made or not; it is sufficient for the determination of this cause, to say, that the act in question being in derogation of the common law in allowing a summary mode of proceeding against one not directly a party to the suit, must be taken with reasonable strictness. It is the policy of our laws in relation to securities, that if possible the principal shall be first reached, and that where judgment is given against a security, he shall have his remedy over instanter against his principal. In the case before us, the remedy cannot be had because of the death of the principal, and no representative of his before the court.

Again: the judgment in this summary way should be as broad as the act which allows it against “the party obtaining the injunction and his securities.” A departure from the act to the extent insisted on, is too glaring to the prejudice of the security, to be tolerated. But other reasons why it is not allowable results from the connection this act has with the act of the same session, (ch. 199, sec. 3,) which allows a scire facias in such a case. Process to call in the party, to allow him a day in court, and such defence as the law of his case justifies, are reasonable in the administration of justice; the provision in favor of it cannot be disregarded. Take the acts in pari materia, which may well be done, seeing they are on the same subject and nearly of the same date, and conclusive reasons present themselves that a construction beyond what the first act imports by its language, cannot be allowed.

The complainant, having had no notice of the intended motion, and the act not covering the case in the form assumed, makes the judgment void. The defence, therefore, was proper, and the case made out justified the decree of the circuit judge.

Decree affirmed.  