
    *Hillyer, Bostwick, and Bush v. Richards, Heustis, Griswolds, and Richards.
    In a declaration upon an injunction bond, it is necessary to aver that execuhad been issued against the principal debtor, and that it appears by its return, he has not goods and chattels, lands and tenements, sufficient to satisfy the same.
    Where one, not a party to the judgment, enjoins a lovy under it, upon specific property, the value of such property, and the costs, may be decreed against him on the dissolution of the injunction.
    But where he enjoins all proceedings upon the judgment, ho is liable, upon its dissolution, for the whole amount of the judgment, with penalty and costs, and the same should be decreed against hi m under the statute.
    
      This is a writ of error to the Supreme Court of Medina county.
    The action below was debt upon an injunction bond. The following facts appear from the record:
    At the'June term, 1835, of the common pleas, Hillyer, Bostwick, and Bush recovered judgment for $2,556.26 and costs, against Alfred Griswold and Alexander Griswold.
    On July 9, 1841, a writ of fieri facias issued upon this judgment, and was levied upon certain goods and chattels claimed by William C. Richards and William Heustis, who thereupon filed a bill in chancery against the plaintiffs in execution and the execution debtors. The bill set forth the claim of Richards and Houstis to the property levied on, and prayed that their title thereto might be quieted — “that in the meantime the said Hillyer, Bostwick, and Bush, their agents, etc., may bo enjoined from all further proceedings on said judgment at law, and the execution issued thereon ” for perpetual injunction and general relief.
    Upon this bill an injunction was allowed as prayed for, and bond given by the complainants, with Dudley Griswold and Ezekiel Richards as security, in the sum of $4,000, conditioned “ if the said William 0. Richards and William Heustis shall pay, or cause to be paid, all moneys and costs due, or to beeomo due, from said complainants in said judgment at law, *and all moneys and costs which shall be decreed against them, in case such injunction shall be dissolved, then, and in that case, the said bond shall be null and void, otherwise to be and remain in full force.”
    At the September term, 1842, the court sustained a demurrer to the bill, and a decree was entered “that the said injunction in this case be dissolved, and the said bill stand dismissed with costs.”
    Suit was then brought by Hillyer, Bostwick, and Bush upon the injunction bond. The cause came on for trial at the September term, 1844, of the Supreme Court, and judgment was rendered in favor of the plaintiffs.
    Upon the trial, the following bill of exceptions was taken :
    “This cause came on for trial, upon the plaintiffs’ declaration containing five counts; defendants demur to the first and fifth counts, and the plea of non est factum to the second, third, and fourth counts; and neither of said parties requiring a jury, the case was tried by the court; and the court being of opinion that said domurrer was not well taken, the same was overruled; whereupon the plaintiffs, by their counsel, gave the following testimony, to wit: An exemplified copy of the record of a suit in chancery, in Summit common pleas, wherein William C. Richards and William Heustis were complainants, and Philo Hillyer, Edmund B. Bostwick, Ralph E. Bush, Alfred Griswold, and Alexander Griswold, Jr., were defendants; also, the original injunction bond in said suit, and upon which this suit is brought. The defendants gave in evidence the execution docket containing the judgment of Philo Hillyer et al. v. Alfred and Alexander Griswold, rendered in Medina common pleas, June term, 1835, and the executions of February 6, 1837, and July 9', 1841, and tho motion filed by the said Alfred and Alexander, at the October term, 1841, to set aside said last-mentioned execution, and the subsequent proceedings thereon; and thereupon the defendants, by their counsel, objected to the plaintiffs’ recovery of any judgment at all, but if the court thought that the plaintiffs were entitled to recover anything, it could be only for the amount decreed against William C. ^Richards and William Heustis, in Summit common pleas, to wit, the sum of $13.87 costs; but as that had been paid after the commencement of this suit, the plaintiffs would only be entitled to recover their costs in this suit to bo taxed.
    The defendants, by their counsel aforesaid, further objected that as said judgment of Philo Hillyer et al. v. Alfred and Alexander Griswold, rendered June, 1835, was dormant at the time the exe^ cution was issued, on July 9,1841, and had remained so ever since, the plaintiffs in this suit could not recover till they had revived the same, and proceeded upon it; but the court having hoard and considered the matter, wore of opinion that, inasmuch as the said William C. Richards and William Heustis had prayed in their bill, in Summit common pleas, “that the said Philo Hillyer, Edmund B. Bostwick, and Ralph B. Bush, their attorneys, agents, sheriffs, servants, etc., be restrained from all further proceedings on said judgment at law, and the execution issued thereon they had by that act prevented the plaintiffs from proceeding on their judgmcnt, and were therefore liable for the whole amount thereof. The court therefore overruled said objections, and proceeded to render a judgment against the said William 0. Richards, William Heustis, Dudley Griswold, and Ezekiel Richards, for tho sum of $4,000 debt, with leave to issue execution for $3,981.79 damages and costs of suit. The said defendants excepted, and prayed that their bill of' exceptions, in that behalf, might be allowed, which is accordingly done; and upon their motion, the same is ordered to be made a part of the record in this case.”
    It is assigned for error:
    1. That the defendants in error were not entitled to recover in this suit on the injunction bond at all, till they had revived, and proceeded on their judgment of June term, 1835, against Alfred and Alexander Griswold, in Medina common pleas.
    2. The said defendants in error were not entitled to recover more than the costs of suit, the costs in Summit ^county having been paid after the commencement of this suit, and before judgment.
    3. The said defendants in error were not entitled to recover upon said injunction bond more than the amount of the decree in Summit common pleas, to wit, $13.87.
    4. A court of law is not the proper tribunal to recover against these defendants the amount of the judgment of defendants in error against Alfred and Alexander Griswold, in Medina common pleas, unless a decree for the amount had first been made in the suit in chancery,in Summit common pleas.
    5. The defendants did not undertake, in the covenant of their bond, to pay said judgment of the defendants in error against Alfred and Alexander Griswold, of June term, 1835, of $2,556.20 and costs, or any part thereof, and were not therefore liable to pay it by the terms of said bond.
    Alvah Hand, for plaintiffs in error:
    In England (from whence we have derived the elements of our jurisprudence), an injunction to stay proceedings at law does not release a levy made on execution of property before the injunction issued ; if the property had been sold, the sheriff was ordered to pay the money into court. 2 Madd. Ch. Pr. 223.
    If the complainant seeks to stay proceedings upon judgment at law, he is sometimes ordered to pay the amount of the judgment and costs into court, not as a payment, but as security for the amount actually due. Drew on Inj. 362; Jacob, 572. So in New York, Blake’s Ch. Pr. 392; no bonds are required to make an injunction operative; money is deposited if the court, or master allowing the injunction, so order.
    Our statute has provided differently. When an injunction is allowed to stay proceedings at law, under the provisions of our statute, a bond must be given by complainant as directed by section 43 of the chancery act; the subsequent proceeding of entering judgment against complainant, on the ^dismissal of his bill, for the amount of the judgment at law, is entirely statutory. Our statute further provides that when the injunction is allowed, and bail given, the property levied upon by execution shall be released. The bond is substituted for the property, and this is always presumed to be a good substitute; it covers the whole amount of the judgment and costs, etc. But to protect the sureties to the bond, the law provides that suit shall not be brought against them till execution has issued against the principal debtor, and returned “ no goods,” etc.
    The right of action upon the bond does not accrue to the plaintiff in the judgment at law till he has thus issued his execution, and if be brings bis suit upon the bond before cxocution issued and returned, he brings it before his cause of action has accrued; if this appears on the trial he will be nonsuited. He should aver in his declaration that execution had so issued and been returned, and prove the fact on trial.
    It is admitted by the attorney of the defendants, in orror, that persons, not parties to the judgment, might lawfully restrain proceedings upon an execution, to which they were not parties; but he contends that it is a fraud upon his clients to attempt to restrain them upon the judgment; there is no fraud in restraining the execution ; orror is here made a fraud.
    I have said heretofore, and now repeat, that the injunction did not prevent Hillyer et al., from proceeding to revive their judgment during its continuance, and their not doing so was a fault of their own, for which the plaintiffs in error are not responsible, and upon which they think it unjust to be made liable.
    In 2 Madd. Oh. Pr. 223, it is said, if an injunction is obtained after an interlocutory judgment (as by default or demurrer), the plaintiff may go on to ascertain his damages, all the court intending to stop being the cxocution. The plaintiff at law is allowed to proceed, so far as that he may be at liberty, eo instanti, that the injunction be dissolved, to take out execution, nor is it a breach of an injunction to sue out, when necessary, a scire facias. 2 P. Wms, 147. This, I believe, *has always been considercd the law in Ohio, and our practice has usually conformed to it.
    • Fraud will not, I trust, be imputed to the plaintiffs in error, because the defendants in error, or their attorney, were ignorant of the law.
    It is admitted, by the defendants in error, that this case does not come within the letter of the statute, but they contend that it comes within its intention; I, on the other hand, broadly assert that it neither comes within the letter nor intention of the statute. The evil that the statute intended to prevent, was the retaining property levied upon, by an execution, in the custody of the sheriff, till the suit in chancery should be finally disposed of.
    In England the court of chancery is considered to be always open; injunctions are there usually allowed upon motion, and mostly after notice .to the opposite party; but the defendants may, at anytime, by complying with the rules of practice, move to dissolve the injunction.
    Our court of chancery has regular and stated terms for the transaction of business; months elapse between its several terms; if property, levied upon hero, must remain in the hands of the officer till the suit in chancery should be disposed of, great injury would result to community by locking up the means which is wanted for improving the country and producing wealth ; and it was in view of the condition of the country, and the wants and requirements of the people, that our statute was made, and I trust the court will give the statute'such a construction as to carry out the intention of the .legislature.
    Our statute makes it an object for the complainant to take care of the property levied upon, and at the same time to secure the judgment creditor, by permitting him to substitute personal security for the debt, and to use the property for his own bonofit. It is the genius of our institutions to promote private, and at the same time the general welfare.
    All that is said in the argument of the defendants in error, in relation to the construction of statutes, appears to me to *be entirely gratuitous, and does not help their case. There is no doubt but the statute ought to be construed liberally, but by a liberal construction it is not meant that it shall extend to the defendants’ ease, unless it is fairly within its intention. The statute expressly designates, and points out the oases which come within its provisions, and leaves no room for including others.
    It is contended, on the part of the defendants in error, that the plaintiffs in error are endeavoring to take advantage of their own wrong. They are charged with having made use of the powers of a court of equity for fraudulent purposes, and after those purposes wore accomplished, are endeavoring to avoid the results, by a denial of the legality of their proceedings. I trust the court will not forget that the defendants in error issued an execution upon their judgment against A. and A. Griswold, and levied it upon the property of Eichards and Heustis, who were strangers to that judgment; which execution was subsequently set aside for irregularity, and the levy released.
    It is difficult to perceive what the doctrine of estoppel has to do with this case.
    The decree of the court, which dismissed the bill of Eichards and Heustis, is the criterion of the amount which defendants in error ought to have recovered upon their bond, whenever they showed themselves entitled to recover at all. It is not the province of the court to make contracts for the parties, but to enforce them, or give damages for their violation.
    In reply to the fourth error, the counsel for defendants in error says, “ that it is plain, from the language of the statute, that the remedy by decree, given by the letter, was intended to apply only to cases of injunction obtained belore judgment, and not, as in the present case, and that last cited above, to those obtained after judgment.” No such construction can bo drawn from the statute. The language of the statute is, “ upon the dissolution of the injunction, and dismissal of the petition in the court of common pleas, the court shall render a decree in favor of the respondent (plaintiff at law), for the *debt or damages, interest and costs, covered at law;” sec. 41, Swan’s Stat. 711. This language is too plain to admit of cavil, or require an explanation. This provision was first incorporated into the statutes of Ohio, February 4, 1822 (2 Chase’s Stat. 1233), and has been continued ever since without any alteration.
    It is also contended by defendants in error, that they have a remedy by suit upon the bond, even if they had one by decree. A party having a remedy by suit at law, or by. proceeding in chancery, can not resort to both tribunals to try his rights; a decision in one is a bar to the other.
    I can not well see how the statute in this case can be cumulative in its effect, as contended for by the defendants in error.
    Its provisions make it imperative on the court, on the dissolution of the injunction and dismissal of the petition, to enter a judgment in favor of the respondent (the plaintiff at law). The court, having jurisdiction of the bill, either rendered the decree, prescribed by the statute on the dissolution of the injunction and dismissal of the bill, or else the court refused to do so. In either event the court acted, in contemplation of law, upon the subject matter of the suit, and that action of the court was final, and a bar to this suit.
    The defendants in error claim that the judgment of the Supreme Court on the circuit in this case on the bond, is a decree in substance, if not in form, in contemplation of the statute. This, I suppose, comes under the head of liberal construction.
    Under the ninth point in the argument of the defendants in error, it is admitted that the plaintiffs in error only covenanted to pay what was due from themselves on the judgment of Philo Hillyer et ul., and that they knew at the time they filed their bill and gave their bond, that they did not owe said judgment, and herein consists one strong item of fraud. They say that plaintiffs in error covenanted in form just as if they were parties to the judgment, and had the full benefit of it just as if they had been parties, and now claim exemption from the responsibility imposed by the statute, because they were not in fact such parties.
    *It is enough for us to say that we should have had the same benefit, if our bill had only prayed to restrain the execution. They were not prevented from reviving their judgment by our injunction. Their execution could not issue till the judgment was revived. They were the agressors with their ii-regular execution, and they would not have been justified in levying even a regular execution issued on that judgment, on the property of strangers.
    The defendants in error complain that the court is called upon by us to sanction fraud. Wo make no such demand of the court; the fraud, if any, is all on the other side, and they appear to expect to change the influence of that fraud from themselves to us, by reiterating it.
    The eleventh point made by the defendants in error is, that the statute does not require an execution to issue against the principal debtors in a case like this, as it was only designed for cases where the defendants to the judgment filed their bill to stay proceedings on the same. I suppose it applies to any case where the court, on the dissolution of the injunction and dismissal of the bill, was bound to enter a decree against complainants for the amount of the judgment at law, etc. If the common pleas were bound to enter up a decree against the complainants in that suit on the dissolution of the injunction and dismissal of the bill, then it applies to this case.
    In the twelfth point made by defendants in error, they claim, among other things, that the plaintiffs in error had ample remedy at law, by a suit in trespass or replevin, and that they did not resort to either, but to a bill in chancery, therefore their intentions were fraudulent. They had a right to select any one of several remedies, and their having chosen to proceed in chancery is no just cause of complaint, nor evidence of fraud.
    The thirteenth pqint made by defendants in error is, that a party shall not be permitted to take advantage of his own wrong. This maxim is just, and ought to be applied to this case, where it properly belongs.
    The defendants in error also say that there is another maxim of law equally applicable to their case, and that is, “for every *wrong there is a remedy, and for every injury a redress; ” and unless they are permitted to recover in this suit, they are without remedy for the loss of the property levied upon by their execution, and released when the execution was set aside.
    H. W. Floyd, for defendants in error:
    The defendants in error roly upon the following reasons, to show why they should recover their judgment at law, together with the interest and costs which was rendered in the Supreme Court:
    I. That if the court had no jurisdiction over the subject, they should have pleaded that fact specially. If the first and fourth errors are well taken, they show that a court of law had no jurisdiction ; and it is too late, after judgment, to take advantage of it on a writ of error.
    2. The plaintiffs in error are estopped from setting up the dormancy of the judgment against A. and A. Griswold, because they swear in their bill in chancery filed in the common pleas of Summit, that the “judgment was in full force, and not dormant, satisfied or discharged,” if it were true that said judgment was dormant.
    
      . 3. That the said defendants in error were not bound to revive and proceed on their, judgment of June term, 1835, against A. and A. Griswold, after the dismissal of the bill in chancery, if it were dormant before they commenced suit on the bond, because neither of the present plaintiffs in error were parties to that judgment, and therefore had no right to stay the defendants in error from proceeding to collect their judgment against A. and A. Griswold; neither had the plaintiffs in error any interest in the judgment, as appears from the record.
    4. That it does not appear that the plaintiffs in error had any interest in the property levied on, except what is stated in their bill in chancery, nor did’ they attempt to show any at the trial in the Supremo Court, but, on the contrary thereof, the defendants in error proved by some ten depositions, ^that the property belonged to A. and A. Griswold, and not the plaintiffs in error.
    5. That if any error was committed by the court, it was in favor of the plaintiffs in error, in admitting the evidence of the dormancy of the judgment, it being objected to by the defendants in error.
    6. The record shows that the suit in chancery was commenced by the plaintiffs in error against the defendants in error, and Alfred and Alexander Griswold (who were the plaintiffs and defendants in the judgment at law), and therefore the said plaintiffs in error can not claim that they come within the provisions of sections 43 or 27 of the chancery act. The plaintiffs in error did not execute the bond as security for A. and A. Griswold, or for their benefit, or at their request; nor were A. and A. Griswold parties to the bond, but they wore made respondents in the bill in chancery, as well as the defendants in error, by the plaintiffs in error. The statute contemplates the filing of a bill in chancery to enjoin a judgment at law, by the plaintiff or defendant to that judgment, and not by third persons, who have no interest in it, and are strangers to it; therefore it was not necessary to issue an execution, before commencing a suit on the bond.
    7. The plaintiffs in error went too far, when they enjoined the defendants in error from proceeding to collect their judgment against A. and A. Griswold, and thereby rendered themselves responsible on their bond for the judgment against A. and A. Gris-wold ; if they- had enjoined only the levy and execution, they might have proclaimed protection under the decision of this court, Portsmouth Turnpike Co. v. Byington, 12 Ohio, 114, on a motion to enter up a decree'on the dismissal of their bill. But, in a suit on an injunction bond, where the injunction only roaches the property levied on, and stays the sale thereof, if it should appear on the trial of the cause that the property belonged to the defendants in the judgment, and not to the complainant in the bill, they would be held liable on their bond for the value of their property levied on and restrained by the injunction bond.
    *8. That the injunction tied up the hands of the defendants in error from proceeding to collect their judgment, which they held against Alfred and Alexander Griswold, until it was dissolved by the court, there is no doubt.
    9. That the injunction to enjoin the .judgment in this case was fraudulent on the part of the plaintiffs in error, against the defendants in error, is equally clear.
    10. That it was unnecessary for the defendants in error to issue an execution against Alfred and Alexander Griswold, or to revive the same by scire facias before suit on the bond, as will appear from Swan’s Slat. 482, because the statute contemplates the protection of the bail in an appeal bond, or in an injunction bond, filed either by the plaintiffs or defendants to the suit, and not where third persons voluntarily step in and file an original bill in chancery on their own account, who have no interest in the judgment enjoined: and therefore it was not necessary for the defendants in error to aver in their declaration that fact, or to prove it on the trial of the cause, and the court were right in ovei’ruling the demurrer to the first and fifth counts of the declaration.
    11. If the execution were irregular, or even void, it did-not justify the plaintiffs in error-in interfering either with the judgment or execution, unless the execution interfered with their rights, and then their remedy was not in chancery, but at law. The dormancy of the judgment, or the irregularity of the execution, belonged to the plaintiffs and defendants to the judgment to settle between themselves, and not to the plaintiffs in error.
   Read, J.

The errors assigned raise two questions, which we propose to consider:

1. The sufficiency of the declaration upon the injunction bond.

2. For the purpose of further proceedings, if the pleadings should be so amended as to warrant judgment, what would be the amount to be recovered ?

*The statute provides that, before the successful party shall bring suit upon an appeal or injunction bond, execution shall issue against the-principal debtor; and, by the return of the execution, it shall be made to appear that the principal debtor has not goods, chattels, lands, or tenements, sufficient to satisfy it. Act regulating judgments and executions, sec. 27, Swan’s Stat. 482.

It is necessary, therefore, to aver in the declaration upon an injunction bond, that execution had been issued against the principal debtor, and return of nulla bona, as to the whole or in part, to sustain the action, or some' legal excuse for not making such averment. No such averment is made in the declaration, nor any excuse why such averment was not made. The declaration is therefore defective, and the judgment must be reversed.

If the plaintiff should ultimately prevail, what should be the amount to be recovered ?

When a stranger to the suit, in which judgment has been had, files a bill to restrain a levy upon specific proporty, claiming right therein, on the dissolution of such injunction, the person suing it out is not responsible for the whole amount of the original judgment, penalty and costs, but only for the value of the specific property levied upon, and the costs arising from the proceedings in injunction; because the.judgment has not been enjoined, and the judgment creditor was not hindered from proceeding in any other manner against the judgment debtor. Portsmouth and Columbus Turnpike Co. v. Byington, 12 Ohio, 114.

But where an injunction against a judgment at law has been dissolved, the recovery upon the injunction bond is for the amount of the judgment, costs at law, and the penalty, and also the moneys and costs decreed against him on the dissolution, if the terms of the bond admit. S.wan’s Stat. 711.

This is the rule as to the amount to be recovered, in all cases where the judgment has been enjoined, whether by parties to the original judgment, or by strangers.

*As to whether, in suit upon injunction bonds, more can bo recovered than the amount decreed on dissolution, depends upon the terms of the bond. The rights under the decree are cumulative only, and do not impair the common law remedy upon the bond itself; and, in suit upon such bond, the amount can be recovered which it was given to secure.

A difficulty, perhaps, may exist under the condition of this bond, which has escaped the attention of the pleader. The defendants are not parties to the judgment enjoined, and the condition is, to pay such money as will become due from them in said judgment, or as shall be decreed against them. There was nothing decreed against them but costs, and, not being parties to the judgment, nothing is due thereon from them.

The case is remanded to the county ; and counsel for plaintiffs will then have an opportunity to consider whether a recovery can be had at law, under the condition of this bond, for the amount of the judgment, or whether he may not require the aid of a court of equity.

Judgment reversed, and cause remanded.  