Morgan v. Morgan , 4 G. & J. 395 ( 1832 )

Earle, J.,

delivered the opinion of the court.

A general demurrer was put in to the replication in this case, and by the court below was ruled good. The suit being upon an injunction bond, the plaintiff set out his claim in the replication, and charged among other things, as a breach of the bond sued on, a failure to prosecute the injunction with effect, on the equity side of Saint Marys County Court, when in truth the principal obligors had engaged in the condition, to proseeute their writ of injunction with effect in the Court of Chancery. This was clearly a breach not within the contract the plaintiff had declared on, and was palpably erroneous; and there is no doubt of the correctness of the court’s decision, if there is not a substantial fault committed by the defendant in an earlier stage of the pleadings. This was asserted, and insisted on by the appellant before us, and our attention was directed to the plea as being equally defective with the replication.

The plea purports to bo a plea of performance, by the principal obligors, and yet it alleges a fulfilment by them of but one of the several stipulations in the condition of the bond, and leaves the rest unnoticed. Its assertion is, that the principal obligors have in all things, well and truly stood to, abided by, obeyed, and performed the order and final decree of the Chancery Court made in the case mentioned in the condition of the writing obligatory, according to the form and effect of the same condition.

The injunction bond is a penal bond, and the condition is for the benefit of the obligors, and if all is not performed that is undertaken to be done, it appears to us, the bond is forfeited, and they become liable to the penalty, and therefore it is neeessary to plead a compliance with all its stipulations. This is usually done in such cases, in a plea'of general or special performance, neither of which this plea can be called. It pleads a part observance only of the covenants of the obligors, and leaves it to conjecture and surmise, whether the other covenants of the condition have been performed or not. We reverse the judgment of the County Court, and as we believe the plaintiff' can recover nothing on this bond, we decline sending it back on a procedendo.

JUDGMENT REVERSED.