delivered the opinion of this court.
This was an action of debt on a bond: the declaration was in the usual form, to which the defendant pleaded general performance: the plaintiff replied, and assigned breaches.
To the plaintiff’s replication, the defendant pleaded seven separate pleas, by way of rejoinder, and to all of the defendant’s pleas, by way of rejoinder, the plaintiff filed demurrers, except the fifth.
The bond, on which this action is brought, recites, “whereas the above bound Thomas Joseph Speake and Edward, Pye, have obtained an injunction to stay proceedings at law, and on a judgment rendered against them in Charles county court, by the above named Thomas Janney and John D. Brown,” fyc., and the condition of the bond is, “that the said obligors shall prosecute the injunction with effect, and satisfy and pay, as well the said sum of money and costs, as all costs, damages and charges, that shall accrue in the chancery court,” &c.
The defendant’s first four pleas, by way of rejoinder, are each of them obnoxious to the same fatal infirmity, namely, they, each of them, deny a fact which the defendant’s intestate has expressly admitted under his hand and seal, in his bond. In the recital of the bond it is said, “that the obligors, Speaka *192ánd Pye, have obtained an injunction to stay proceedings at law,” and in each of these pleas, by way of rejoinder, this fact is denied. The law is clearly settled upon authority, that a party is estopped from denying a fact recited in his deed.
Lord Denman, C. J., in the case of Bowman vs. Taylor and others, 29 Eng. Com. Law Rep., p. 90, in his opinion, uses this language: “As to the doctrine laid down in Co. Litt., 352 B., that a recital doth not conclude, because it is no direct affirmation: the authority of Lord Coke is a very great one; but still, if a party has, by his deed, recited a specific fact, though introduced by ‘whereas,’ it seems to me impossible to say, that he shall not be bound by his own assertion, so made under seal.” Vide Fridge vs. State, use of Kirk, 3 G. & J., 114. Lainson, ex’tr of Owen Griffiths, vs. Tremere, 28 Eng. Com. Law, 214. Shelley vs. Wright, Wille's Rep., 9.
The defendant’s fifth plea, by way of rejoinder, is nothing more than a repetition of her plea of general performance, and in nearly the same words, and is, therefore, no answer to the plaintiff’s replication; neither does it traverse or avoid the breaches assigned in the replication. This would have been a good ground of demurrer, but the plaintiff, instead of demurring, filed his surrejoinder thereto, and again assigned a breach of the bond, to wit: “that the said Spealze and Pye did not, nor did either of them, prosecute with effect the said writ of injunction,” &c. To this surrejoinder the defendant demurred, and the court sustained her demurrer.
In this, we think, the court erred, and as it is a well established rule, that courts of law will give judgment against the party whose pleading is first bad, and as we think the defendant’s fifth plea was unquestionably defective, therefore the demurrer should have been overruled.
The defendant’s seventh plea, to which the plaintiff also demurred, is neither an answer as to the plaintiff’s replication, or a bar to his action, and the matter which it sets up, by way of defence, shows conclusively the breach of the bond assigned by the plaintiff. It, in substance, avers, that the said Sp'eake and Pye, during their joint lives, and the life of the survivor of them, “did well and truly prosecute with effect said injunction, *193and did, in all tilings, stand to, obey, and perform, each and every order and decree of the chancery court,” &c., until the death of the said Speak and Pye; and “that it was so proceeded in said injunction, that after the death of the said Speak and Pye, the said injunction was dissolved by a final order of said court, passed on the 27th day of March 1840:” the plea avers, that at the time of the dissolution of the injunction, “there was no administrator or executor of said Speak or said Pye, in existence.” The matter set up in this plea as a defence, shews clearly the forfeiture of the condition of the bond, and the plaintiff's right of action. The condition of the bond is, that the said Speak and Pye “shall prosecute the said injunction with effect:” the allegation in the plea is, “that it was afterwards so proceeded in said injunction, that after the death of said Speak and Pye, that said injunction was dissolved by final order of said court, passed,” &c. This court must consider the order of the chancery court as regularly and legally passed in the cause. “The judgment of a court of competent jurisdiction, when coming incidentally in question in any other court, is conclusive upon the question decided, and cannot be impeached, on the ground of informality in the proceedings, or error or mistake of the court in the matter on which they have adj udicated. ’ ’ This is the language of the court in Raborg vs. Hammond, 2 H. & G. 50. Bowie vs. Jones, 1 G. R., 214.
This case is manifestly distinguishable from the cases cited and relied on by the defendant’s counsel. The case in Carthew, 519, Duke of Ormond vs. Birely, which seems to be the leading case on this point, shews very clearly the grounds of the decision, namely, “that the suit abated by the death of the obligor, in the replevin bond, before judgment;” for the court say, there was neither non suit, or verdict against the plaintiff in repletan. The case in 14th Mass. R., 231, Janney vs. Janney, was decided upon the ground, that the suit abated before judgment in the appellate court. But the plea in this case does not aver that the suit abated, but on the contrary, “that it was so proceeded in, that said injunction was dissolved by final order of said court, passed on the 27th day of March 1840.”
JUDGMENT REVERSED AND PROCEDENDO AWARDED.