#### *Jackson v. Arnold.

May, 1826.

Injunction — Judgment against Principal and Surety-Parties.* — The principal and surety to a bond obtain an injunction to a judgment against them. The surety dies pending the suit in Chancery. After referring the cause to a Commissioner, exceptions to the report on account of set-offs disallowed, (some of which were claimed by the surety himself.) and the Court rejecting them, because not filed in time, the injunction is in part dissolved, and in part perpetuated, without making the representatives of the deceased plaintiff, a party. This proceeding is erroneous. A rule should have been given him, at the instance of the defendant, that unless he revived the suit by an appointed time, the injunction should stand dissolved.

This case was submitted by counsel, and the following opinion gives a sufficient history of it.

*

See generally, monographic *note*on “Judgments51 appended to Smith v. Charlton, 7 Gratt. 425; monographic *note on*“Injunctions“ appended to Clay tor v. Anthony, 15 Gratt. 518.

May 11.

JUDGE GREEN

delivered the opinion of the Court.

The appellant Edward Jackson, and Jackson, filed their bill against the Arnolds, and obtained an injunction to a judgment obtained by them upon a bond in which Edward Jackson was principal, and John Jackson surety. In the progress of the cause, the accounts between the parties were referred to a commissioner, who made his report on the 12th of October, 1820. On the 16th of October, 1821, it was suggested that John Jackson had departed this life since the last Term; and the cause came on to be finally heard, as to the surviving plaintiff and the defendants. By the decree of the Court, the injunction was in part dissolved, and in part perpetuated. Exceptions to the report were filed by the plaintiffs, on the 8th day of May, 1821, which were disregarded by the Court, because they had not been filed within the time prescribed by the rules of the Court. Amongst other claims to set-offs against the bond, submitted to the commissioner, rejected by him, and insisted on by the exceptions, were two claimed by John Jackson, the surety, on a receipt alleged to have been executed by George Arnold, for 4S1. as paid expressly on *account of the bond, proved by the subscribing witness, but denied upon oath by George Arnold; the other, for $6, a debt due to him by James Arnold, admitted by the latter.

The representative of John Jackson, who had been a party to the suit, was interested i.n the fate of this injunction; audit ought not to have been dissolved, without affording him an opportunity to be heard. This opportunity should have been given to him, by making a rule upon him, at the instance of the defendants, if they chose to make a motion to that effect; that unless he revived the suit by an appointed time, the injunction should stand dissolved. If he failed to revive accordingly, the injunction might have been dissolved in whole or in part, as to John Jackson, if, upon a hearing as to Edward Jackson, it ought to have been dissolved, in whole or in part, as to him. The hearing of the cause, as to Edward Jackson, was therefore premature; and it would not be proper, in this Court, *now to examine the*merits of the cause, in the absence of the representative of John Jackson, who has had no opportunity to be heard.

On this ground, the decree should be reversed, and the cause remanded.