Brown v. Speight

30 Miss. 45 | Miss. | 1855

FiSHER, J.,

delivered the opinion of the court.

The only point presented for decision in this case is, whether an administrator who entered into an injunction bond, as required by the chancellor’s fiat, with condition to pay the amount of the adverse party’s debt, in case the injunction shall be dissolved, is liable upon such bond, according to its condition.

We have been referred to the decisions of this court, holding that an administrator is entitled to his appeal or writ of error, without giving bond, as in other cases. While we admit the full force of these decisions, we at the same time do not regard them as applicable to the case now before the court. It is the administrator’s right to appeal or prosecute a writ of error, if a judgment or decree should be rendered against him, affecting the estate in his hands. Not so, however, in regard to an injunction, the granting of which rests in the sound discretion of the court, or the chancellor in vacation. An application for an injunction may be wholly refused, or the writ may be granted upon such terms as the court may think proper to prescribe at the time, and it is for the party to say whether he will take it upon those terms, or refuse it altogether. Where a bond is made part of the terms, and the party enters into it, he must expect to abide by its condition, if he should fail in his remedy, especially in a case like the present, where the plaintiff was enjoined from prosecuting his actions at law. The chancellor may have erred, in allowing the complainant to arrest the plaintiff’s suits at law before judgment; but such was what the complainant desired, and he has therefore no right to complain. If the chancellor had so modified his fiat as to deny to the writ any force whatever, until the judgments were obtained at law, and then had made it apply to the judgments, the bond might then have been dispensed with. But, under the circumstances, where the plaintiff was enjoined from proceeding to obtain his judgments at law, the bond was not only authorized by law, but ought to have been taken, as a necessary security to the plaintiff.

Judgment reversed, demurrer overruled, and cause remanded.