6 Ohio 336 | Ohio | 1834
delivered the opinion of the court:
The first question discussed involves the inquiry, whether a suit upon an injunction-bond can be sustained without averring that execution bad issued against the principal debtor, for the sum claimed. By section 27 of the act regulating judgments and executions, 29 Ohio L. 108 (identical with the act in force when this bond was taken, 2 Oh. O. Stat. 1302), it is provided, that in all cases where judgment shall be rendered in the Supreme Court against the appellant, or an injunction is dissolved, the successful party shall, before he brings suit upon the appeal or injunction bond, issue execution against the principal debtor; and if it appear by the return, that he has not sufficient to satisfy the execution, he may then commence suit upon the injunction bond, and take judgment for the penalty, which maybe discharged on the payment of the original judgment or decree, with interest and costs. It is urged that the provision so changes the common law rule, that a declaration upon an injunction bond does not show a right in the plaintiff to sue, unless it contain an averment that execution has been issued and has been returned.
What class of eases was in the contemplation of the general assembly in enacting this law? Evidently those where the relation of creditor and debtor subsisted, and as to which a judgment or decree was had on which an execution might issue. The provisions requiring an execution against the principal debtor, and for 348] discharging the bond on paying the original ^judgment or decree with interest and costs, make this clear to our minds ; but they do not stand alone. The chancery act contains express provisions for three classes of injunction. 1. To stay waste. 2. To stay proceedings at law, before or after judgment, 29 Ohio L. 87. 3. In all other cases where it is usual for courts of equity to interfere by injunction, 29 Ohio L. 89.
There is no limitations in our statutes upon the issue of the first class of injunctions, and their issue is regulated by the common usage of chancery. In the second class, it is provided, that the injunction shall not operate until bond be given with security conditioned for the payment of all money and costs due or to become due in the. suit or judgment enjoined, and all moneys decreed against the complainant in case the injunction be dissolved; and if the suit enjoined was for the recovery of money only, the court on dissolving the injunction is required to decree the plaintiff at
The distinguished counsel, who has argued this cause for the defendants, seems himself pressed with the difficulties of the construction he advocates. The statute expressly provides for the-discharge of the injunction bond in the cases contemplated upon the payment of the original judgment or decree. It would seem to follow that cases, where there was no original judgment or decree, were not within the view of the law-maker. Yet the law authorizes injunctions in cases where there is no original' judgment or decree, upon such conditions as shall seem to the court equitable. It seemed to the court of common pleas equitable to allow the injunction in the case under consideration, upon bond S50] and surety, to indemnify the enjoined *party from injury to result from the interruption of his business, in case it should be adjudged by the court that he was right. The injunction is dissolved, and no other decree is rendered than simply a decree for the costs of the suit, which are paid. The injury against which the bond was intended as indemnity, is collateral to the inquiry in. the injunction suit, and remains unnoticed in the decree.
Counsel admits it possible that in such cases injury maybe sustained beyond the costs, but urges that, inasmuch as they were not included in the decree, it is too late to ascertain and recover their amount in the suit on the bond. It is, indeed, the usual method of ascertaining the extent of injury in the common law courts; but if one of the conditions of the bond sued upon, refer to an injunction allowed by a chancellor, the rule, it is urged, is to be departed from.. To avoid the palpable injustice of limiting such bonds to the mere payment of taxable costs, to the exclusion of the prin
*The next question arises upon the third plea. It sets up [351 as a bar to the suit the payment of the costs decreed in the chancery suit. If we are right in the view taken of the declaration, that it is not essential to the plaintiff’s title for him to aver the issue of an execution against the principal obligor, then the matter of this plea does not reach the entire action, but looks only to a portion of it. It is not directed to either breach assigned, and of course, if it neither answers the right set up in the declaration, the execution and legal obligation of the bond, it must answer the breaches assigned, or one of them, or be bad as a bar. The breach is, that the injunction was dissolved and the parties injured by the loss of labor and materials. It is no answer to this to say the obligor paid the costs decreed, paid a sum which it is not urged he withholds.
The remaining question regards the sufficiency of the first plea, which is, in substance, that while the chancery suit was still pending
But it is said the court has not the power to accept the second bond as a satisfaction of the first, that none but the obligee, the person having the legal interest in it, can discharge it. So far •352] from this being true, we all know it to be *an undisputed head of equity jurisdiction to order the surrender of deeds and other instruments, to cancel them against the will of the obligee, and to compel obedience to the order by imprisonment, if need be. The plea asserts the order for the bond to be one for a substitute, .and the acceptance of the second bond to have been in lieu of the first. This the demurrer ‘admits to be true. If, therefore, such order could be legally made, and the bond was executed and accepted according to the order, the question is at rest. It is said the acceptance is averred to have been by the clerk, and not by the obligee. That is true, and such was the order of the chancellor-as set out, to give to the acceptance of the clerk, and the fact •does not affect the case.
It is still further objected to this plea, that it alleges the order made at October term, 1831, as a condition precedent to the continuance of the injunction, and the bond not executed until Feb
We think the declaration and the first plea of the defendant good. The second plea we hold to be bad. But the plaintiff has-demurred jointly to both pleas, and as one is good, the rule in such cases overrules the demurrer, and entitles the adverse parties to a judgment. There is, however, an application for leave to amend. Leave is giyen the plaintiff to withdraw his demurrer, and reply on paying all the costs since filing the demurrer.