| Vt. | Mar 15, 1883
The opinion of the court was delivered by
The allegations in the bill brought by the defendant Tarbell against the plaintiff upon which he predicated his claim for relief were, that the plaintiff had obtained a fraudulent judgment against him, and that he had offsets against that judgment which he had been fraudulently prevented from making. The plaintiff had taken out an execution upon said judgment which was, on the 9th day of August, 1876, in the hands of Luke Parish, a deputy sheriff, for collection. The prayer of the bill, as far as relates to an injunction, was that the court should enjoin and strictly forbid the defendants and their confederates, agents and attorneys from proceeding further in the collection of the execution issued upon said judgment.
The chancellor to whom said bill was directed on said 9th day of August granted an injunction enjoining and forbidding the defendants, their confederates, agents and attorneys from proceeding further in the collection of said execution. Said injunction was made conditional upon the filing of a bond by the defendant Tarbell according to the rules in chancery ; and the bond in suit was filed with the clerk of the Court of Chancery, to which the bill was made returnable, on the 12th day of August, 1876. The condition of the bond, after stating that the injunction was granted upon the application of Tarbell and reciting it, provides that if the said Tarbell shall well and truly pay all intervening damages occasioned by delay to said Campbell in case it shall prove that said injunction is improperly granted, then this obligation to be null and void, but otherwise in full force. The injunction was served on the said Parish on the 24th of August, 1876, and on the plaintiff on the 13th of September, 1876 ; and was in force from the time of its service until the December Term of the Orange County Court, 1877. The execution mentioned in said injunction was dated the 13th of June, 1876, and made returnable in sixty days; and on the 12th day of August, 1876, (the last day of its life),
The right of the plaintiff to recover is resisted upon the claim that the obligation of the defendants, evidenced by the injunction and bond, does not cover the damages or losses which it is found the plaintiff sustained ; so that the first question to be determined is the construction to be put upon these instruments.
The purpose of the bill upon which the injunction was granted was to avoid the judgment upon which the execution issued ; and unless the injunction is construed as enjoining the enforcement of that judgment during its pendency, the obtaining of it was an idle and useless ceremony. The orator did not need, to have the collection of the execution which had been issued enjoined, because it had run out when the injunction was served, and no beneficial purpose was served by the giving of the bond in suit.
It is evident to us that it was understood by the chancellor, the party who applied for the injunction, and the defendants who joined with him in the execution of the bond, that the injunction was operative to prevent the institution of any proceedings to enforce the judgment. This was the intention of the parties to the . transaction; and it was said by Lord Mansfield in remarking upon the obligations of sureties in Barclay v. Lucas, 1 T. R. 291, that in questions upon intentions wp must look at the subject-matter of the contract. The violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the mandate of the court. Grand Junction, &c. v. Dimes, 17 Sim. 38. In the case of Partington et al. v. Booth et al., 3 Merivale, 148, it was held that where the defendant had been enjoined from taking possession under a verdict obtained by him in an action of ejectment, and the costs had been taxed, and a
Considering those objects and circumstances, any attempt to collect the judgment while the injunction was in force would have been a breach of it, and subjected the party making it to punishment for contempt A party will not be permitted to do indirectly what he has been prohibited from doing directly. The injunction being operative to that extent, the bond given by the defendants was a vaild and binding obligation to secure the plaintiff against loss that he might sustain in consequence of its being granted.
The remaining question is whether, upon the findings of the referee, the plaintiff has sustained loss which is recoverable in this action. It is found that the plaintiff was prevented from selling the wood, which the referee has found was worth §15, and the lumber, which was worth §200, by the injunction, and there can be no question but what those items should be allowed. The facts found in relation to the last item of §200 do not, in our judgment, furnish a basis upon which it can be held as a matter of law that the damages represented by that item are compensatory. The burden of proof was upon the plaintiff to show that Tarbell not only had the wood, but that it was so situated that by the use of reasonable diligence it might have been discovered, so that an officer holding an execution might have levied upon it. No such facts were shown ; but on the contrary it is found that it would have required great energy to seize' any of it. The facts found would probably have excused an officer holding an execution for neglect to make a levy. The'damages thus shown are too remote and conjectural to constitute a cause of action.
The judgment of the County Court is reversed, and judgment rendered for the plaintiff to recover the two first items, as found by the referee, and interest.