22 Md. 1 | Md. | 1864
delivered the opinion of this Court:
This was an action on an appeal bond, docketed by consent, between the appellants as plaintiffs and the appellee as defendant. No question arises upon the pleadings. The facts appearing in the bill of exceptions, so far as it is material to state them, are that Robert and John McEldowney exhibited in the Circuit Court, for Baltimore City, their bill of complaint against John Fullerton and others, and obtained an injunction against Fullerton and the other respondents, restraining them from negotiating or collecting certain two sight drafts for $2,500., each payable to the order oí' Fullerton, and drawn by R. McEldowney & Co. &o. The injunction was dissolved by the order of the Circuit Court on the 14th of November 1855, from which order an appeal was taken, and the appeal bond sued on was executed; the appellee being one of the sureties and obligors therein. The order of the Circuit Court dissolving the injunction was affirmed by the Court of Appeals on the 22d day of June 1851. It was admitted that R. and J. McEldowney were in business and in good credit, and paying their notes at the time of the appeal, and that they continued in good credit until some time in .December 1856, when they failed in business and became insolvent. The two drafts held by Fullerton, mentioned in the injunction were produced, and were admitted to have been drawn and signed by McEldowney & Co. It was also admitted that the defendants in this suit had paid to the plaintiffs all the costs decreed, in the Chancery cause, by the Circuit Court and the Court of Appeals. A verdict was rendered by the jury for the plaintiffs for nominal damages, upon which judgment was entered, and the plaintiffs prosecuted this appeal; assigning for error the rejection by the Superior Court of two prayers offered by them, to the refusal of which they excepted. These prayers present the question of the
Before expressing our opinion upon the construction of the words of this condition, we shall consider: First, the power and authority of the Chancery Court to require an appeal bond in- such a case: And secondly, the effect of the bond when approved, in staying the operation of the order appealed from. Prior to the Act of 1832, ch. 191, no apjDeal was allowed from an order refusing to grant an injunction, or an order dissolving an injunction. By that Act the privilege of an appeal from such order was granted
But although there was no statute, (prior to the Code,) providing for a bond in case of appeal from an order dissolving an injunction, we are of opinion the bond is not void for that reason. The power of Courts of Chancery in Maryland, to take appeal bonds, without any statutory enactment conferring that authority, has never been
“The liability of a surety is not to be extended by implication beyond the terms of his contract.” 9 Wheaton, 703. 2 N. P. (5 Bos. & Pul.) 180. 12 East. 405, cited in 14 Md. 366. By the terms of the bond the obli-gors bound themselves to prosecute the appeal with effect, and in the event of a failure to do do so, the condition expressly declares what the obligors shall pay. Trans
No doubt the bond ought to have been given in such terms as would have secured to the other parties in the cause, indemnity for the loss complained of here. If it had followed the form prescribed by the Act of 1853, ch. 374, in analogous cases, and which is now required by the Code, Art. 5, sec. 23, it would have been sufficient for that purpose. The bond being insufficient, the other parties, by application to the Court in which the cause was pending, might have compelled the then appellants to have executed another in proper form, but having failed to do so, it is not now in our power to aid them, by construing this contract so as to cover the damages claimed, which we think are not within its terms.
Judgment affirmed.