
    Gildart's Administrator v. Howell.
    In an action upon an injunction bond, if it be averred in the replication which assigns the breach, that the judgment enjoined was at a term different from the one mentioned in the recital of the condition, and in favor of a different party, the averment will be a departure for which a demurrer will be sustained.
    When a bond or other instrument, upon which action is brought, is so uncertain that it is necessary to resort to parol testimouy before the liabilities of the party can be ascertained, the bond will be void by reason of the uncertainty. The rule is that latent, not patent ambiguities may be explained by parol testimony.
    CALEB HOWELL for the use of William Stumps, commenced an action of debt in the circuit court of Wilkinson county, against H. Eggleston, administrator of Horatio N. Gildart, deceased, and complained of “ a plea, that he rendered unto him the sum of five thousand three hundred and forty-two dollars and sixty cents, which he unjustly detains from him; for that whereas, the said Horatio N. .Gildart in his lifetime, to wit, on the 18th day of February, in the year 1833, at the county aforesaid, by his writing obligatory sealed with his seal, and now here to the court shown, the date whereof is the same day and year aforesaid, acknowledged himself to be held and firmly bound unto the said Caleb Howell, in the sum of five thousand three hundred and forty-two dollars and sixty cents, above demanded, for the payment of which he bound himself, his executors and administrators. Yet the said Horatio N. Gildart, in his lifetime did not pay, nor hath the said Eggleston, administrator as aforesaid, since the death of the said Gildart as yet paid the said sum of five thousand three hundred and forty-two dollars and sixty cents, above demanded, or any part thereof, to the said Howell, although often requested so to do; but the said Gildart, in his lifetime, and the said Eggleston, administrator as aforesaid, ever since the death of the said Gildart, hath hitherto wholly refused, and still doth refuse to pay the same or any part thereof to the said Howell, to wit, at the county aforesaid, to the damage of the plaintiff, six thousand dollars whereof he sues,” &c.
    The defendant by attorney craved oyer of the bond declared, and the condition thereunder written: the bond entered into by the defendant and others was set out and the condition in the words following, to wit: “ The condition of the above obligation is such, that whereas at a circuit court of law held in and for the county of Wilkinson on the first Monday of November in the year of our Lord one thousand eight hundred and twenty-three, the above named C. Howell; and whereas the said Sophia Gildart hath prayed for and obtained an injunction, to stay proceedings upon the said judgment at law, until the matters shall be tried in equity; now if the said Sophia Gildart shall prosecute her said injunction to effect, or in case the same shall he dis- ■ solved, they will pay and satisfy said judgment at law and also all such damages, costs and charges as shall be awarded against them, then the above obligation to be void, otherwise to be and remain in full force and virtue in law.”
    The defendant then demurred, and for cause of demurrer assigned: “ 1. The condition on which the said writing obligatory is executed is vague, uncertain, senseless and void in this, that it recites no person or persons who had obtained any judgment or judgments against the said parties to the said writing obligatory, or any or either of them, or any other person. 2. It specified no amount for which any such judgment had been obtained against the said parties, or any or either of them, or any other person. 3. It specifies no court in which any such judgment has been obtained. 4. No judgment is designated, no person to whom payable and no amount specified, for the neglect to pay which, by the said parties or either of them in any contingency, said obligation should remain in full force.” The plaintiff joined in demurrer. The court overruled the demurrer and gave judgment that the plaintiff recover, &c.
    At a subsequent period, upon affidavit filed, the judgment was set aside, and thereupon the defendant “ comes and defends the wrong and injury when,” &c., “ and craves oyer of the writing declared on and the condition there underwritten,” (which were set out as above set forth,) “ and the defendant saith actio non, 
      because, he says, that the said Horatio N. Gildart, the intestate, in his lifetime, and the said defendant, administrator as aforesaid, since the death of the said Horatio, did, from time to time and all times after the making of the said writing obligatory and the said condition thereof, well and truly observe and keep all and singular the articles, clauses, payments, conditions and agreements, in the condition of the said writing obligatory specified, comprised and mentioned, in all things therein contained on his part and behalf to be observed, performed, fulfilled and kept, according to the tenor and effect, true intent and meaning, of the said condition of the said writing obligatory; and this he, the said defendant,is ready to verify: whereof he prays judgment,” &c. And for replication to the said plea the defendant, in manner and form as the same is above pleaded, the said plaintiff says pre-cludi non, because he says, the said Horatio in his lifetime did not perform, fulfil and keep all and singular the covenants, conditions and clauses in said writing obligatory, and said condition there underwritten, contained and set forth; nor hath said defendant, since the death of the said Horatio, done so in anywise; but said Horatio in his lifetime, and the said defendant as his administrator since his death, hath broke the same in this, to wit: that the said Sophia Gildart did not prosecute her said injunction to effect, and that said injunction was dissolved by the judgment and decree of the supreme eourt of the state of Mississippi, at the June term of the said court in the year 1829. And that said Sophia Gildart did not, at any time since the making of the said writing obligatory and said condition above set forth, pay or satisfy said judgment at law, being, as this plaintiff avers, a judgment of Isaac W. Davis for the use of said Howell, against said Sophia, for the sum of two thousand five hundred and forty dollars and sixty-five cents, in the superior court of Wilkinson county, had at the May term thereof 1820, and on the 8th day of May of that year, and the sum of $63.72 of costs assessed on said judgment as aforesaid, nor any damages or charges aforesaid awarded against her; and the plaintiff avers that the said judgment for two thousandfive hunderedandsixty dollars,and also said costsof sixty-three dollars and seventy-two cents, with all interest due thereon at eight per cent, per annum, from the said 8th day of May, 1820, until the assigning of this breach, remains wholly unsatisfied and that no part thereof hath been in anywise paid to the plaintiff, by means whereof the said writing obligatory, hath become forfeited, and an action hath accrued to the said plaintiff, to have and demand of the said defendant, the said sum of five thousand three hundred and forty two dollars, above demanded in his said declaration, yet the said Horatio, in his lifetime, wholly refused, and the said defendant, as his administrator hath hitherto refused, and still do refuse to pay the said last-mentioned sum of money, or any part of it. All which said plaintiff prays may be inquired of by the country.”
    To the replication the defendant filed a demurrer which upon argument the court overruled. The defendant thereupon took issue upon which a trial was had by a jury. Upon the trial before the jury, the plaintiff offered evidence of the facts set forth in his replication, by the production of the records from the courts in which the matters respectively transpired, to which the defendant objected, but the court admitted them to go to the jury, to which the defendant excepted. A verdict and judgment was rendered for the plaintiff.
    The plaintiff in error says that, in the record and proceedings, and in the judgment aforesaid, there is manifest error in this:
    1. The court erred in overruling the demurrer of the defendant to the declaration of the plaintiff in the court below.
    2. The court erred in overruling the demurrer to the replication in said court below.
    3. The court erred in admitting the evidence to go to the jury which was objected to.
    And for these and other errors the said plaintiff prays that the said judgment may be reversed, &c.
    Henderson, for plaintiff in error,
    referred to Revised Code, 94, s. 44 — 1 Chitty, 619-17; Mass. Rep. 375; 3 Campbell, 181; 9 Wheaton, 703; 19 Johnson’s Reports, 234, 235; 1 Littell, 414; 3 Littell, 6,7; 4 Johnson’s Chancery, 247; 5 American Digest, 83, s. 24.
    McMurran, contra,
    
    cited 3 Call, 523; 3 Starkie on Evidence, 1021; 1 Peters, 89; 2 Johnson’s Cases, 293; 10 Johnson’s Reports? 133; 2 Dallas, 70; Munford’s Index, 104 — 222; 2 Henning and Munford, 39.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendant in error instituted this suit, in the circuit court of Wilkinson county, on an injunction bond. The defendant below craved oyer of the bond and condition, and demurred, and the demurrer was overruled. The defendant again craved oyer and set out the bond and condition, and pleaded performance generally. The plaintiff replied, and set out a single breach in the replication, and the defendant again demurred to the breach, which was overruled, and this is assigned as error. The plaintiff obtained a verdict and judgment, and a bill of exceptions was taken to the introduction of evidence.

I think all the material points in the case, will properly come pp under the demurrer to the replication. If the replication and breach were good, the evidence introduced was proper in support of them. In order to determine the sufficiency of the breach, we must have recourse to the condition of the bond, because the breach must correspond with the condition as set out, or be supported by an averment not inconsistent with the condition. The condition is in the following words: “ The condition of the above obligation is such, that whereas, at a circuit court of law, held in and for the county of Wilkinson, on the first Monday in November, in the year of our Lord one thousand eight hundred and twenty-two, the above named C. Howell — (then a blank,) — and whereas, the said Sophia Gildart hath prayed for, and obtained an injunction to stay the proceedings upon the said judgment at law, until the same shall be heard in equity. Now if the said Sophia Gildart shall prosecute her said injunction to effect, or in case the same be dissolved, they shall pay and satisfy the said judgment at law,” &c.

The replication is, that the injunction was dissolved; and that the said Sophia did not pay and satisfy the judgment at law, being, as the plaintiff avers, a judgment of Isaac M. Davis, for the use of said Howell against said Sophia, for the sum of two thousand five hundred and sixty dollars, and sixty-five cents, in the superior court of Wilkinson county, had, at the May term thereof, 1820, on the 8th day of May in said year.” There is an obscurity in the bond in some respects which requires explanation, but it appears too much to bring it - within the rule in regard to latent ambiguities, as we find it in 3 Starkie on Evidence, 1000.

It appears affirmatively that it is an injunction bond, and it appears that the judgment at law nrnst .have been in favor of C. Howell, for the bond is made payable to him and his name alone is used in the recital, and in direct connection with something that must have taken place in the circuit court of Wilkinson county at the November term, 1822, and by the subsequent part of the bond a reference is made to a judgment at law, by the use of the term said judgment,” leaving no room for any other conclusion than that a judgment of that term in favor of Howell was intended. In endeavoring to arrive at the intention of the contracting parties, when it is doubtful, a due regard must be paid to what they have said or written, and if possible the deficiency must conform to the intention expressed. If the bond had not specified any term of a court of law in connection with a judgment, but had merely recited that a judgment at law had been recovered against one of the obligors, it would probably have been such a latent ambiguity as might be supplied by parol, for the purpose of making the proper application of it; but the term of the court is mentioned, and a judgment, and I do not think that parol evidence could be received to show a judgment at a different time, and a party will not be permitted to make a material averment which he is not allowed to prove; although there may be a patent defect, parol evidence could not control it. There can be no question but what the bond, as it stands, would not justify the breach assigned unless it can be 'aided. The plaintiff below has averred that the breach occurred in consequence of the non-payment of a judgment recovered at May term, 1820, and it was said in argument that parol proof was admissible to fill up the blank. Suppose the blank could be now filled up, (and of course if the plaintiff below could have filled it he would have inserted the judgment mentioned in the breach,) and how would it stand? Reason would dictate that it should be so filled as to avoid an absurdity, and yet to insert words that would free it from such an imputation would not make it answer the purpose. For the sake of illustration let us take the condition as far as it goes, and supply the blank with words appropriate to the breach, and it will read thus: “ The condition of the above obligation is such that whereas, at a circuit court of law held in and for the county of Wilkinson, on the first Monday in November, in the year of our Lord one thousand eight hundred and twenty two, the above named C. Howell at the May term, 1820, of the supreme court of Wilkinson county on the 8th day of May of that year, Isaac W. Davis, for the use of C. Howell, recovered judgment against said Sophia.” &c. I have endeavored to render it as intelligible as possible, and I think the addition increases the confusion, and would make the bond void for uncertainty. Nothing short of power to strike out, or reject part of the recital, could mould the condition into a form suitable to the breach. If it was competent for the plaintiff below to have shown that May term, 1S20, was intended instead of November term, 1822, and that Isaac W. Davis use of C. Howell against Sophia Gildart was the case meant, then his breach was well assigned; but such a showing, I think, is beyond the range of parol testimony. If a recovery can be effected on this bond in the present suit, certainly C. Howell may make it cover all the suits he ever had against the same parties.

By claving oyer and setting out the condition it became a part of the declaration, and any breach that did not go in support of it would amount to a dereliction of the ground of complaint, and be a departure on the part of the plaintiff. The only breach that could be assigned in an action on an injunction bond, would be the non-payment of the judgment enjoined, or the ^damages. It must be shown affirmatively that it was the identical judgment that had been injoined, otherwise it would amount to no breach. The breach in this instance is for the non-payment of a judgment of a different term of the court from that expressed in the bond, and, therefore, a departure. Amongst the numerous authorities cited, none seems to be so much in point as the case in 5 Harris and Johnson’s Reports, 64. It was there held that an injunction bond is only binding with reference to the judgment it recites, and in that instance it recited one of April term, 1801. It was deemed insufficient to cover one rendered at September term, 1801. I think this canse depends mainly on the principles of pleading as they are laid down in the elementary books: Gould’s Pleading, 435; 1 Chitty’s Pleadings, 619. The case referred to from 2 Henning and Munford by the counsel for the defendant in error does not sustain the breach. Although there was a blank in the forthcoming bond, yet it was held good by intendment, enough having been expressed to show the intention of the parties; and it was said by Judge Henning that, when the meaning of the parties can be collected from the bond, it will be good. The other authorities cited in support of the breach appear to belong to the class of cases where parol evidence may be admitted in aid of latent ambiguities. The condition of the bond shows conclusively its object, and the recital contains matter that cannot be rejected or controlled, but must be taken in connection with the object of the bond, as identifying it with a judgment of the term and in favor of the parties expressed, and the averment in the breach that it was a judgment of a different term and in favor of different parties amounted to a departure for which the demurrer should have been sustained.

The judgment must be reversed and cause remanded. 
      
       The following note, taken from “ Select Reports” in the King’s Bench, contained in the American Jurist, Vol. i. No. 7, page 34, is thought to contain the law on the subject of ambiguities, and is inserted.
      “ Jlmbiguitas verborum, latens verifications supphtur: nam quod ex facto oritur ambiguam verifications facti tollitur.” Bacon’s Max., 23.
      In this short sentence is contained the whole law relative to the admission of parol evidence to explain, or rather to support a deed or other written instrument, and it would appear (at the same time that it lays down the case to he, that a latent ambiguity may be explained by parol) so plainly to indicate what is such a latent ambiguity, that it may well be matter of surprise that there should be so many eases in the hooks in which the question as to the admissibility of such evidence has arisen. The ambiguity here meant is evidently such as arises upon a statement of facts extrinsic of the deed itself, and which facts themselves can only be known by parol evidence; and what is admitted to explain the doubt which the statement of those facts, independent of the deed 'itself, raises as to the intention of the grantor. Thus, when a grant of an annuity was made out of the manor of S., and the grantor had two manors, called north S. and south S., parol evidence was held admissible to show which manor was meant. Harding v. Suffolk, 1 Ch. Rep. 138. So if a man, having two manors called Dale, levy a fine of the manor of Dale without further circumstances, it may be given in evidence to prove which manor was intended; for this is not to contradict the record, but to support it. 1 Rolle’s Abr., 676, pl. 11. Onhhe deed itself in both these instances there was not any ambiguity whatever: the grant, in the one case, and the fine in the other, conveyed a manor called S. and the manor of Dale; the ambiguity arose from the fact that there were two manors of the same name; the evidence given went neither to alter, to contradict, nor to vary the deed itself, but merely to apply it, to point out the subject-matter of conveyance, and ut res magis valeat quam pereai, to do away with the uncertainty which the existence of that fact had created. And so where a testatrix devised her estate to J. C., and it appeared that there were father and son of the same name evidence was admitted to show that the son was meant. James v. Newman, 1 W. Black. 60, P. S. Cheyney’s case, 5 Co. 68; S. P. Cowrdon v. Clarke, Hob. 32.
      And in Hampshire v. Pierce, 2 Ves. Sen., 216, where the testatrix gave 100/. to the four children of A, and A at the date of the will had six children, two by her first husband, and four by her second, evidence was admittted to prove, that, by the four children, she meant the four by her second husband. In all these cases, again the ambiguity arises, in the first three, from the fact of there being two persons of the same name, in the last from the fact of there being more than four children of A; and the evidence which was admitted went to apply the will, and to point out the party intended to be benefitted thereby. On the will itself there was no ambiguity apparent, and it was. only by reference to extrinsic circumstances that any uncertainty arose, and it was in order to give effect to the will, that it might not be void for the uncertainty thus created, that evidence was admissible. The same observation applies to the case where a mistake has been made in the name of the devisee and there is no one answering to the description as contained in the will. Beaumont v. Fell, 2 Peere Williams, 141. But where a testator devises an estate by a particular description, or to a person by a particular name, and there is an estate which answers that description, or a person of that particular name, collateral evidence is not admissible to show that the devisor meant to use the description in a more extended sense, and to comprehend estates which are not within the description, or that where he inserted that name some other name was intended to have been inserted. See Whitehead v. May, 2 Bos. & Pul. 593; Doe d. Chichester v. Oxender, 3 Fount. 147; Doe d. Browne v. Grenire, 3 M. & S. 171; Doe d. Furrell v. Lyford, 4 M. & S. 550; Doe d. Brown v. Brown, 11 East, 441; Delmare v. Robelle, 1 Ves. Jun., 412; and see per M. R. in Beaumont v. Fell.
     