Hussey v. Neal

| Ga. | May 15, 1873

Trippe, Judge.

We know of no statute or practice in this State which allows a defendant in a bill for injunction, etc., to set up in his answer, by way of cross-bill, a claim for damages against the complainant for suing out the injunction. The statutes of some of the States expressly secure this right to the defendant, and in some of them it is provided that the Chancellor may, on a dissolution of the injunction, decree damages to the defendant. But we have no such provision in the Code, nor are we aware of any practice allowing it in this State. When this injunction was granted, it was under that section of the Code which gave the Judge power to grant such writs, “ upon such terms as to the affidavit and giving bond and security, as the Judge may directRevised Code, sec. 3150. Section 3045 is: “ Generally, equity jurisprudence embraces the same matters of jurisdiction and modes of remedy in Georgia as was allowed and practiced in EnglandSee Bein et al. vs. Heath, 12 Howard, 168. We, consequently, affirm the judgment of the Court below in sustaining the demurrer to that portion, of the answer filed as a cross-bill, which prays that damages may be decreed for suing out the injunction.

We also affirm the judgment in overruling the demurrer to the cross-bill, for want of equity. Cochran bought Slaughter’s land in December, 1861, and went into possession. He, and his representative after his death, and the receiver, after this litigation commenced, were in possession of that plantation until December, 1868. The receiver also has received several thousand dollars from the rent of the Andrews-Grier plantation. By the first consent decree, the administratrix of Slaughter turned over to the receiver the notes she held on Grier, and judgment was at the same time taken in favor of the receiver on these notes for about $30,000 00. The purpose of this arrangement having failed, another interlocutory decree was taken by consent, whereby the Grier debt was canceled, and the Andrews land and some $>4,000 00 for rent thereof for 1868, were surrendered by Grier to the receiver, and the land sold by him. My own mind is quite strong-ly impressed that the estate of Slaughter has an equity in this fund, so far as concerns the increase thereof caused by the rent. It was by the giving up the notes held by the administratrix on Grier into the hands of the receiver that the whole fund was brought into Court. And it would seem to be not altogether equitable that Cochran and his representative and the receiver should have the benefit of six years’ use of the Slaughter plantation, five of the six years being after Cochran’s death, and by presumption of law, that much for the benefit of creditors; and, also, the receiver to get $4,000 00 for the rent of the Andrews place, and then that the whole fund arising from all these sources, including the sale of the Andrews land, should be appropriated to Cochran’s creditors, to the exclusion of Slaughter’s estate.

Moreover, the claim of Cochran, or his representative, on Slaughter, for a breach of Slaughter’s bond, would be the value of the land at the time of the breach. What that value was, was not shown. It is true the sale was in December, 1868, but that does not determine the question, especially as the claim of dower was on it. We do not decide that this would furnish a measure of the equity of the claim of the Slaughter estate on this fund — that is, by allowing that much out of the fund to the creditors, and the balance to the administratrix. We are not now prepared now so to hold, as the point was not argued. Nor do we feel prepared or authorized, upon a simple demurrer for want of equity, to adjudicate, not only that there is equity in the cross-bill, but what is the exact measure of that equity. We simply affirm the judgment overruling the demurrer on this point.

Judgment affirmed.