Opinion
June Term, 1836.
Upon the partial dissolution of an injunction the defendant in equity may have an execution there for the sum as to which the injunction is dissolved; but if, instead of that, he sues at law upon the injunction bond, he cannot afterwards, upon the total dissolution of the injunction, have an execution from the court of equity, his only remedy being upon his judgment at law.
IN this case the plaintiff had obtained an injunction against a judgment which the defendant William had against him at law. Upon the coming in of the answers, the injunction was dissolved as to three hundred dollars, part of the judgment enjoined, and the defendant William obtained the leave of the court to put the injunction bond in suit at law; he did so, and recovered judgment for the penalty, to be discharged by the payment of three hundred dollars and the costs. The bill was retained as an original, and was afterwards dismissed at the hearing, on the merits. The counsel for the defendant William now moved for judgment on the injunction bond, which was resisted by the other side.
Winston for plaintiff.
Pearson for defendant.
The court refuses the motion. No reason is perceived why the defendant, in this Court, might not have obtained execution here against the plaintiff and his sureties for the sum for which the injunction was dissolved. The bond is an agreement to perform the orders and decrees of the court, made in the cause from time to time, and may be regarded to be in the nature of a rule to that effect. But if the defendant did not choose that method, but preferred that of an action at law — which was in his own election — this Court can no longer give a remedy on the bond. It is not here, and indeed is merged in the judgment at law; and all further proceedings must be had on that judgment. That can be enforced only in the court which rendered it.
PER CURIAM. Motion refused.
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