Loveland v. Burnham

1 Barb. Ch. 65 | New York Court of Chancery | 1845

The Chancellor.

Although the 31st rule fixes the minimum of the penalty of a bond, to be taken by the officer allowing an injunction out of court, it was intended that such officer should exercise a reasonable. discretion in fixing the amount of the security to be given; and that it should in all cases be sxtfficient to cover' the amount of damages the defendants might sustain, if it should eventually appear that the allegations in the bill were untrue, or that, for any other reason,' the complainant was not equitably entitled to an injunction. The officer allowing an injunction should always require a bond for a larger sum than $500 where, from the nature of the case, there is reason to suppose the damages occasioned by the injunction, if it should continue until the termination of the suit, will exceed the minimum fixed by the rule.

The sureties in such bond should also be required to justify in a sum at least double the penalty of the bond. For, under the present exemption laws, a surety may swear that he is worth five hundred dollars, over and above all debts and responsibilities, and yet may not have one half of that amount which a creditor will be able to reach by execution; or even by a creditor’s bill. The object of this rule was to afford to the party enjoined full and ample security for all damages he might sustain, by reason of the allowance of an injunction, against him, without giving him an opportunity to be heard in opposition to such allowance. And whenever the injunction is issued without the requisite security, to indemnify the defendant against such contingent damage, it will be the duty of the court to set aside the injunction, with costs; for the irregularity in the issuing thereof without complying with the rules and practice of the court. An excuse is given in this case, by the solicitor, for omitting to state,- in the affidavit of justification, that the surety was a householder; but no excuse whatever is made for the neglect of the surety to justify in double the penalty of the bond; as required by the practice of the court. Nor is there any excuse given for not taking the acknowledgment of the surety, to the due execution of the bond by him; or proving its execution, by the subscribing witnesses to the same, so as to authorize the bond to be read in evidence without further proof. The officer allowing the injunction, therefore, should not have approved of such a bond; and the injunction founded upon the filing of that bond was irregularly issued, and must be set aside with costs.