Peter Vivian Daniel

“ 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 ”

“ And the said defendants, as to the replications of the said plaintiff to the fourth and sixth pleas of the said defendants, say that the said plaintiff ought not, by reason of any thing by them in said replications alleged, to have or maintain their aforesaid action thereof against them, because they that the other writs of fieri facias founded on judgments recorded in said District Court against the defendant, as described and set forth in said replication, were younger in point of time than the judgment and execution founded thereon in the plea mentioned. ”

“ The first, after setting out in haec verba the condition of the injunction-bond, sets out the breach of the condition, specially, in this, that the said Smith Hogan did not prosecute his said writ of injunction to effect, &c., but afterwards, &c., dismissed the same. It then avers that by means of the wrongful suing out of said injunction, plaintiff has sustained damage to the amount of $4,000. ”

“ 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. ”