Hogan et al. v. Ross. In June, 1847, the cause was continued again. In December, 1847, it came on for trial. A jury being impa nelled, the plaintiff, by his attorney, read to the jury the pleadings, a certificate of the clerk of the Circuit Court, showing that the bill in the case of Hogan v. Ross was dismissed by order of complainant's solicitors, and there rested his case. The defendants then put in a demurrer to the evidence. On the 10th of December, 1847, the following proceedings took place. Friday, December the 10th, 1847. This day came the parties by their attorneys, and it appearing to the satisfaction of the court that defendants have filed no plea to the second count in plaintiff's declaration, but have therein wholly made default: It is therefore considered by the court, that plaintiff recover of defendants the sum of six thousand three hundred and fifty-four dollars and ten cents debt, in the said second count in the declaration mentioned, and also the costs in this cause expended. And the plaintiff, by attorney, comes and remits the sum of twenty-six hundred sixty-two dollars and seventy-eight cents, being part of the judgment above mentioned. Defendants' motion in arrest of judgment, filed and entered December 10th, 1847, as follows, to wit: The defendants move the court to arrest the judgment in this case: 1. Because the court cannot pronounce a final judgment upon the second count in the declaration. 2. For other causes. DAVIS & GOODWIN. Also, afterwards, to wit, on the 11th day of December, being a day of the December term of said court last aforesaid, the further proceedings were had in the foregoing cause, to wit: AARON Ross, use of Robert Patterson, v. SMITH HOGAN, ARTHUR S. HOGAN, AND, REUBEN Y. Reynolds. Saturday, December the 11th, 1847. This day came the parties, by their attorneys, and then came on to be heard defendants' demurrer to plaintiff's testimony; in which said demurrer the plaintiff was ordered to join, but refused to join, and thereupon dismissed the first count in his declara Hogan et al. v. Ross. tion set forth; whereupon the defendants demanded judgment on the demurrer to the evidence for want of joinder thereto, which is refused by the court. And also, afterwards, to wit, on the day and at the term last above stated, the further proceedings were had in the aforesaid cause, to wit: AARON ROSS, who sues for the use of Robert Patterson, V. SMITH HOGAN, ARTHUR S. HOGAN, AND REUBEN Y. REYNOLDS. 401. Saturday, December the 11th, 1847. This day again came the parties, by their attorneys, and thereupon came on to be heard defendants' motion to arrest the judgment rendered in this cause on yesterday; and, after argument, it is considered by the court that said motion be overruled. A writ of error brought all these proceedings up to this court. It was argued by Mr. Reuben Davis, for the plaintiffs in error, and Mr. Coxe. for the defendant in error. Mr. Davis. This was an action of debt founded upon an injunction-bond. The declaration contained two counts. The first count sets out the bond and condition, and assigns breaches; the second is only upon the penal part of the bond. The defendants below filed but one plea, which undertakes to answer the whole declaration, and is an answer to the whole. The case having been put to the jury, the plaintiff introduced his proof and closed. Thereupon the defendants demurred to the testimony, and tendered an issue to the court. The plaintiff refused to join in the issue upon the demurrer, and the court refused to compel him to do so, or allow the defendants to sign judgment. Thus stood the case, when the plaintiff's counsel asked the court for judgment final by default upon the second count, upon the ground that it had not been replied to. This was allowed by the court; still leaving the demurrer to the testimony undisposed of. The court certainly erred in allowing judgment upon the second count. The plea undertakes to answer the whole declaration; and if it does not do so, the objection should have been by demurrer. The plaintiff could rot sign judgment. 6 Johns. Rep. 63; 18 Johns. Rep. 28: 20 Johns. Rep. 471; 1 Saunders, Rep. 28, note 3; Chitty, 510. I confess that when a plea undertakes to answer only a part of the declaration, and afterwards answers more, judgment in Hogan et al. v. Ross. that case may be signed for so much as the plea in its commencement does not undertake to answer. 6 Johns. Rep. 63; 18 Johns. Rep. 28; 20 Johns. Rep. 471; 1 Saunders, Rep. 28, note 3; 2 Chitty, 510. It was a manifest error to allow plaintiff to take judgment, even if the plea had not extended to the second count of the declaration final. 4 Phillips, Evidence, 169; 1 Saunders, Pleading and Evidence, 319. This The only remaining question is, what the judgment of the court shall be? There can be no question that the court will feel it to be their duty to reverse the judgment below. being done, I insist that it will be the duty of the court to render upon the demurrer such judgment as the court below should have rendered in the case. There can be no necessity for reversing the judgment, and returning to the court below, as there is nothing to be settled by that court. Mr. Coxe, after stating the nature of the amended declaration, proceeded to comment upon the rest of the pleadings. The defendants appear and plead several pleas. 1. Actio non, because they have prosecuted their injunction with effect, and pray an issue to the country. 2. General non damnificatus with a verification. 3. General performance of condition with a verification. 4. Full performance of all and singular the conditions of said bond, in this, viz., that plaintiff sued out a writ of fieri facias on the judgment in the bond and declaration mentioned, which went into the hands of the marshal; and that the said marshal did, by virtue of the same, levy and make of the property of said Smith Hogan $4,000; no time specified. 5. That prior to the issuing of the execution enjoined, viz., in June, 1842, the judgment upon which it issued was fully paid. It will be observed that oyer is not prayed of either the boud or the condition, and consequently none was given. The five pleas put in, informal and defective as they are in many respects, while they profess to answer the entire declaration, are substantially only an answer to the first count, leaving the second unnoticed. The pleadings on both sides, after the narr., are unskilfully drawn; a replication is filed to the 4th plea, to which there is a rejoinder and a demurrer to that-rejoinder, a demurrer to the 2d and 3d pleas, issue joined on the first. The demurrer to the rejoinder was argued and sustained; leave given to defendants to answer over, which was declined; whereupon judgment on that was given for plaintiff. The cause came on to be tried on the issue joined on the first plea; after the plaintiff had produced his evidence, defendants Hogan et al. v. Ross. demurred to the evidence, which demurrer was argued; and afterwards the court rendered judgment for plaintiff on the second count in the declaration for want of a plea; a motion was made in arrest of judgment, which was overruled. The demurrer to the evidence came on to be heard, the plaintiff refusing to join therein and dismissing the first count in his decla ration, and judgment was entered for plaintiff on the 2d count. It cannot be doubted that there was much irregularity in the conduct of the case; but it all originated in the bad pleading of defendants, and it is apparent that the final judgment is in accordance with the law and justice of the case. The rule of pleading is clearly laid down by Mr. Sergeant Williams, 1 Saund. 28, n. 3, and the authorities there cited. Every plea must answer the whole declaration or count. If a plea, as in this case, begin with an answer to the whole declaration, but in truth the matter pleaded is only an answer to part, the whole plea is bad. In such case plaintiff may take judg 'ment for the part unanswered as by nil dicit. 4 Rep. 62 a; 1 Chit. Rep. 132, note a; Id. 526, n. It must be apparent on the whole pleadings that defendants had no defence to the action, and merely made defence for delay, and that plaintiff is entitled to judgment on the merits. Mr. Justice DANIEL delivered the opinion of the court. This was an action of debt instituted by the defendant in error, who was plaintiff in the court below against the plaintiffs in error, as the obligors in an injunction-bond. To the original declaration three pleas were filed at the June term of the court, 1815; to the second and third of these pleas the plaintiff demurred; and at the December term, 1845, the defendants demurred to the plaintiff's declaration. The demurrers to the two pleas above mentioned were sustained by the court, and afterwards, viz.: on the 10th December, 1846, the court decided in favor of the demurrer to the declaration; giving at the same time leave to amend. The plaintiff, under this leave, filed his amended declaration, presenting the case which was acted upon in the court below. The amended declaration consists of two counts; the first sets out the injunctionbond with the condition thereto annexed, and alleges a breach of that condition as the special ground of the action. The second count is for the penalty of the bond, as having been forfeited by failure of payment. The defendants filed five pleas to the amended declaration; upon the first of these pleas an issue of fact was joined, and the four following were by the court adjudged bad upon demurrer. At the December term of the court, 1847, the cause coming on for trial upon the issue joined Hogan et al. v. Ross. upon the first plea, after the testimony on the part of the plaintiff was closed, the defendants tendered a demurrer to the evidence offered by the plaintiff, but in this the plaintiff refused to join, and dismissed or struck out the first count in his declaration; whereupon the defendants moved the court for judgment on the demurrer to evidence, for want of a joinder thereon, but this motion the court refused to grant, and afterward entered up the following judgment: "It appearing to the satisfaction of the court that the defendants have filed no plea to the second count in the plaintiff's declaration, but have therein made default; it is therefore considered by the court that the plaintiff recover of the defendants the sum of six thousand three hundred and fifty-four dollars and ten cents debt in the second count in the declaration mentioned, and the costs in this cause expended. If in our examination of the decision of the Circuit Court, it were deemed necessary to pass upon the legal effect of the pleas tendered by the defendants below, and overruled by the court, we could have no hesitation in pronouncing each of those pleas bad upon demurrer. It is a settled rule in pleading, that wherever a plea in its commencement professes to respond to the entire declaration or count, and is in substance and reality in answer to part only of such declaration or count, the plea is bad, and the defect may be availed of, upon demurrer. If a plea profess in the commencement to answer only part of the declaration or count, and is in truth and substance a response to such part alone, the plaintiff should not demur, because the residue of the count or declaration is unanswered, but should take judgment for that residue by nil dicit, as by demurring he would operate a discontinuance of the entire cause. The authorities upon these canons of pleading will be found collected from the earliest decisions by Sergeant Williams in note 3 to the case of the Earl of Manchester v. Vale, 1 Saunders, 28. The same rules are expressly affirmed in Tippet v. May, 1 Bosanquet & Puller, 411; Everard v. Patterson, 6, Taunton, 625; Wilcox v. Newman, 1 Chitty's Reports, 132, and Hallet v. Holmes, 18 Johnson, 28. In the case before us every plea tendered by the defendants embraces within its commencement the entire cause of action, averring that the plaintiff should not have or maintain his action; yet each of them in its body and substance, is limited to the condition of the injunction-bond and to some stipulation in that condition to which each plea specifically refers. The pleas demurred to therefore, could not but be properly overruled; and with respect to that upon which issue was joined, it being immaterial and inconclusive as to the entire declaration, and defective in the same sense with the others, had the issue been found against the plaintiff, he would |