Lead Opinion
It will be observed that the injunction awarded in this cause was not an injunction to stay proceedings on a judgment or decree for the payment of money, and was not therefore one where the bond was required by section 10 of chapter 133 of the Code to be with “condition to pay such judgment or decree and all such costs as may be awarded against the party obtaining the injunction and also such damages as shall be incurred or sustained by the person enjoined in case the injunction be dissolved.” The injunction being to prevent J. T. Griffith from collecting from the Norfolk and Western or East River Railroad Company certain estimates then due and soon to become due to the firm of Griffith & Purcell, as well as any other moneys due or to become due to said firm, and to prevent said railroad company from paying such estimates to Griffith, and to prevent Griffith from interfering with or removing the books of the said firm, until the further order of the court, it became the duty of the judgе awarding the injunction to prescribe the penalty and condition of such bond, and in his order he did so, by requiring the bond to be in the penalty of $1,000.00, “with condition for the payment of all such costs and damages as may be awarded to the defendant, Griffitn, should this injunction be dissolved.”
It is apparent that upon the dissolution of this injunction the court could award the defendant no damages whatever, for by the twelfth section of said chapter 133 such damages can only be awarded upon the dissolution of an injunction to stay proceedings upon a judgment or decree for the payment of money. The damages, which the judge awarding the injunction intended to secure by the condition of the bond as
If any such special damages have been the necessary or immediate result of the suing out of the injunction, they must be known to the party so injured. He will be able to state the character of each particular injury resulting therefrom, the manner in which and the extent to which he has been damaged, and the pecuniary loss necessarily or immediately occasioned thereby. When he seeks to recover from the alleged wrong-doer compensation for the loss resulting therefrom, the plainest principles of justice as well as the established rules of pleading require that in any judicial proceeding instituted for that purpose the injuries complained of and the damages resulting therefrom should be set forth with such reasonable particularity and certainty that his adversary may be informed of the precise character of the demand, and be able, if any he has, to make his defence against it.
From what has already been said, it, is apparent that the condition of the injunction bond described in the declaration is more comprehensive than the condition of the bond required to be given by order of the judge awarding the injunction. The latter was “for the payment of all such costs and damages as might be awarded to Griffith should the injunction be dissolved,” while that inserted in the bond is that Purcell will “pay any decree or order that may be awarded against him,” and also “all such costs and damages as shall be incurred or sustained by Griffith in case the injunction be dissolved.” It is contended by the defendants in error that as the condition of the bond is more comprehensive than that prescribed by the order of the judge, it is void in to to, and if not totally void, it is void as to so much of the condition as is in excess of the order of the judge, and upon these two legal propоsitions the defendants’ special pleas Nos. 1, 2 and 3 are based.
Neither of the counts alleges any special damages sustained by the relator resulting from the suing out of the injunction ; and none' having been alleged, the Circuit Court did not err in excluding from the jury the evidence offered by him tending to show that he had sustained special damages in his business as a railroad contractor by the suing out of the injunction. While the declaration has not been prepared by the pleader with as much accuracy and precision of statement as is desirable, and has thereby confounded in some cases the “plaintiff” with the “relator,” and has used them'interchangeably, as synonymous, and has in one instance in the first count used the name of Thomas Purcell for that of Edmund Purcell, yet these errors could mislead no one, as the person intended in each case sufficiently appears from other parts of the declaration.
From the statement of the pleadings hereinbefore given, it is apparent that every allegation necessary to entitle the re
From the view we have taken of the main question in this controversy, it becomes immaterial to inquire whether special damages were sustained by the relatоr or not, as the j udgment which the court should have rendered would have been the same in either event. Not having demurred to the declaration, whatever errors were committed by the plaintiff appearing on the face thereof are after a trial 'of the action by the court by consent of parties, as well as after a verdict, cured by the statute of jeofails, unless there be omitted something so essential to the action. * * * that judgment according to the law and the very right of the case can not be given. Section 3, ch. 134, and § 29, ch. 125, Code; Holliday's Ex'rs v. Myers,
It is conceded that if the same be invalid in either aspect, it is only because the condition of the bond is more comprehensive than that prescribed by the order of the judge awarding the injunction. The statute which requires the court or judge awarding an injunction in any case other than staying proceedings upon a judgment or decree for money to fix the condition as well as the penalty of the bond without which the injunction can not take effect, contains no provision which expressly or by implication, declares that injunction bonds voluntarily executed, containing any other conditions than
While the statute requires all injunction bonds to be given before the clerk of the proper court and proved and acknowledged before him, (section 1, ch. 10, and § 10, ch. 133, Code,) he-is not required to prepare the same. It is the duty of the party obtaining the injunction, if he would make the same effectual, to have the bond so given, acknowledged, or proved before the clerk, who, being satisfied with the sufficiency of the sureties therein, files and preserves the bond so given, or proved. The injunction bond in this case was voluntarily acknowledged, executed upon a sufficient consideration, for a lawful purpose, with full knowledge ón the part of the obli-gors that the condition thereof was more comprehensive than that prescribed by the judge awarding the injunction. This indifference on their part most probably grew out of the confidence of the principal obligor, Edmund Purcell, that he would recover in his suit a decree for a large amount against Griffith, instead of the possible decree against himself which he so generously undertook to secure by the condition of said bond, by virtue of which he obtained the full benefit of his injunction for 15 months.
A “bond” is defined to be an obligation under seal, and is either single or conditional. It is single, when the obligor obliges himself, his heirs, administrator, or executors to pay a certain sum of money on a certain day. It is conditional, when the obligor obliges himself, his heirs, etc., to pay a certain sum of money, upon condition that if he does some particular act the obligation shall be void. A common-law bond, whether single or conditional, is one voluntarily executed in the absence of any statutory authority requiring the same to be executed, prescribing the penalty or condition thereof. Mur-free Off. Bonds, §§ 214,430. Such bonds, unless executed for a consideration malum in se or malum prohibitum, or the same be in violation of public policy, or be in special cases declared void, are valid, and bind the obligors to the extent and according to the terms and conditions of the bond. A statutory bond is one required by statutory authоrity by State, county, district, or municipal officers, by fiduciaries ap
The chief distinction between statutory and common-law bonds is that the obligee in the former is entitled to all the special privileges, remedies, and processes which are granted by the statute, while the common-law or voluntary bond stands upon the ground of any other contract introduced in a bond upon a condition between man and man. And if for any reason a bond whicli was intended to be a statutory bond fails in a material respect to conform to the requirements of the statute, it will not be good as a statutory bond, but it may be valid as a common-law bond, or, if very defective, it may be altogether void. The general rule is that if bonds intended to be statutоry, but too defective to fulfill all the essential requirements of the statute to be entitled to the privileges of strictly statutory bonds, they are nevertheless good as common-law bonds, unless they contain provisions contrary to those prescribed by the statute, or are in violation of law, common or statutory, or public policy. Murfree Off. Bonds, § 430; Howard v. Brown,
Where a superior officer exacts from his inferior a bond more onerous in its conditions than the law authorizes, the bond is void so far as it purports to exact illegal or extra-official duties, or impose unlawful liabilities. Bomar v. Wilson,
Jameson v. Kelly, supra, was an action of debt on an injunction bond which was conditioned that “if the said Samuel shall satisfy and pay said judgment and costs and the judgment and costs "which might thereafter be obtained in the aforesaid suits, and all cost and charges and damages that should accrue on the trial of said injunction in case it should be dissolved, then said bond to be void, else to remain in full force and virtue.” The statute in such cases required “bond with security to be given for the judgment and costs at law and the costs in the suit in chancery only.” The question was whether so far as the condition of said bond provided for the payment of the damages accruing on the dissolution of the injunction, it was not illegal and void; and the Court of Appeals of Kentucky held that it was not. Boyle, Judge, delivering the opinion of the court in that case, says: “It is admitted that the chancellor awarding the injunction made the condition of the bond more onerous than the statute required, but that inasmuch as the law gave the defendant 10 per cent, on the amount of the judgment at law the court could not say that it was unreasonable to require security to be given for its payment.” It will be observed that in this case the court clearly held, not only that the bond was a valid injunction bond, but also that even the “onerous condition” thereof did not render it invalid, even to the extent that the condition was more onerous than the condition prescribed by the statute.
State v. Findley, supra, was an action on a bond given by a county treasurer, “with condition that he shall faithfully and impartially discharge all the duties of his'office; while the statute prescribed that such bond should be conditioned for the paying ovеr according to law all moneys which shall be received for State, county, township, or other purposes.” The court nevertheless held said bond to be a good statutory as well as a good bond at common-law; citing U. S. v. Bradley,
Johnson v. Vaughan,
In Belt v. Marr,
In Worsham v. Egleston, Id. 48, it was held that if before the act of 1794 the sheriff in taking a forthcoming bond included his commission on the debt, it was erroneous, but in such case the bond is not void, and judgment shall be entered for the sum due, without the commissions. And the same course was pursued in Wilkinson v. McLaughlin, Id. 49. In Beale v. Downman, Id. 219, it w7as held that if a forthcoming bond be taken payable to the sheriff he may maintain an action upon it. And in Johnston v. Meriwether,
In Clawson v. Shaw,
Barnes v. Brookman,
In Kavanagh v. Saunders,
The same question had been considered by this Court in the case of Porter’s Exr's v. Daniels, reported in
Green, President, delivering the opinion of the Court, reviewed a large number of authorities on this question, and we deem it unnecessary here to re examine them or to reconsider the conclusion reached in that case. The naked question was there presented, whether a bond taken by an officer without any authority of law from obligors who voluntarily execute the same for a consideration received thereon, not unlawful in itself, was for that cause alone, void, and was decided unanimously in the negative. This conclusion was stated by Green, President, as follows : “The mere fact that a bond not authorized by law has been taken by an officer does not render such bond invalid at common law. Such bonds have been frequently held void at common law, but wherever so held, it has nоt been simply because taken by an officer without authority, but for other and sufficient reasons appearing in the particular case, such as that they were not voluntarily executed; that they were given to an officer to induce him to violate his duty as such officer, or to induce him to perform a duty he was bound to perform
From these authorities it is obvious that an obligation, whether intended to be a statutory bond or not, voluntarily-executed for a sufficient consideration, which is neither malum in se nor malum prohibitum, and which does not contravene the policy of the law and is not repugnant to the provisions of the statute, is valid at the common law; and that an obligation thus executed for a sufficient consideration, containing conditions, some of which are legal and others illegal, and the latter can be severed from the former, will at common law be held invalid, as to the conditions which are illegal, but valid as to those which are legal, unless such obligation because of such illegal conditions be by statute declared wholly void. Thus, the illegal conditions of the obligation are disregarded or treated as surplusage, while the obligation itself to the extent the conditions are legal is at common law held to be valid. A similar principle has been applied to statutory bonds where the conditions thereof either fall short or are in excess of the conditions prescribed by the stature or by the court or officer authorized to do so. In such case if the condition fall short of the requirements of the statute, the bond will be held valid as a statutory bond to the extent of the condition, unless it be so defective that it fails in every material respect to conform to the statute. On the other hand, when the condition is more onerous than required by the statute, if the bond has been voluntarily executed for a sufficient consideration which is neither malum in se nor malum prohibitum nor in violation of the policy of the law nor repugnant to the provisions of the statute, it will be held valid as a statutory bond to the extent that the conditions thereof are authorized or required by the statute; and the onerous condition in excess of the requirements will be disregarded or treated as surplusage, unless the manner of taking or the form of the bond prescribed by the statute is made an express condition
Treating of the same subject, Murfree Off. Bonds, § 61, says: “It sometimes occurs that a bond prescribed by a statute, and required by it to be taken by a specified officer, is so drawn that it contains conditions in excess of those prescribed by the statute. -In such case, the question arises whether the bond is valid at all, and if so, to what extent. The law in such cases seems to be settled that if such a bond be voluntarily executed by its obligors, it is valid so far as it imposes obligations authorized by the statute, but the stipulations which are in excess of it may be rejected as surplusage ;” citing Bonar v. Wilson, Treasurer v. Bates, Jameson v. Kelley and State v. Findley, supra. The same author, in treating of that particular kind of statutory bonds familiarly known as “injunction bond,” says : “If a bond of this description is defective because it does not contain all that the statute requires, it will nevertheless be enforced as to the material cоnditions' prescribed by the statute which it does contain citing Holliday v. Myers,
Upon a writ of error to this Court, the defendants below contended that the injunction bond was fatally defective, and that no action would lie thereon. The defendants in error, the plaintiffs below, contended that it was .too late to raise such question after judgment, if the bond contained enough upon which to found an action ; and that the bond was valid, notwithstanding that, in providing for the payment for “all loss or injury” not required by the statute, it omitted the liability for costs which the statute did require. Haymond, Judge, delivering the opinion of this Court, on page 294 says “that the declaration does not allege that the bond contains any provision for paying all such costs as may be awarded against the parly obtaining the injunction, as provided in section 10 of chapter 133 of the Code. Although the condition of the bond is not so extensive as the statute requires, yet it contains a material part of the conditions required, the bond is not void, but binds the obligors to the extent of such condition ; and when the bond contains some conditions or provisions not required by the statute, and
The substance of the defendant’s special pleas Nos. 1 and 2, offered to be filed, as well as their plea No. 3, which was filed, presented thé same question. Having in each plea set out in extenso the bond and the condition thereof, as well as the order of the judge awarding the injunction and prescribing the penalty and condition of the bond, and thereupon, because the condition of the bond was more comprehensive than that prescribed by the ordеr of the judge, plea No. 1 averred that the bond was null and void; plea No. 2 averred that so much of the condition as provided that Edmund Purcell should pay the decree or order that might be awarded against him and all such costs and damages as should be incurred or sustained by said Griffith in the event the injunction should be dissolved was null and void; and plea No. 3, which was filed after the second count (which was an amendment to the declaration) was filed, averred that so much of the condition as required Edmund Purcell to pay any other sums than the costs and damages awarded against him by the order dissolving said injunction was null and void. The only issue of fact presented by any of these pleas was whether the condition of the bond described in the declaration was
Upon the trial of the action, as appears from the plaintiff’s second bill of exceptions, no evidence was offered by the defendants; but the documentary evidence introduced by the plaintiff proved that said Edmund Purcell, by the decree dissolving said injunction, was indebted to and became liable to pay to the relator, J. T. Griffith, the said sum of $1,145.26, with interest thereon from December 1,1888, until paid, and $147.66 costs in the declaration mentioned; and that the defendants, by reason of the breach of said conditional bond, are liable to pay to the said plaintiff the sum of $1,000.00, the penalty of said bond, with interest thereon from the 1st day of December, 1888, the date when the injunction was dissolved. We are therefore of opinion that the Circuit Court erred in rendering judgment in favor of the plaintiff, for the sum of $1,000.00, the penalty of said bond, to be discharged by the payment of the sum of $147.66 and costs, including an attorney’s fee of $5; and for this error the said judgment of the Circuit Court rendered herein on the 20th
Dissenting Opinion
dissenting:
If the word “awarded” in the order granting the injunction is understood and intended to mean the same as if the
In Murfree Off. Bonds, § 894, the law is stated as follows : “Injunction bonds, in common with most other obligations, must be so construed ut res majis valeat quant pereat. If a bond of this description is defective because it does not contain all the statute requires, it will nevertheless be enforced as to the material cоnditions prescribed by the statute which it does contain. And, on the other hand, if besides embodying all the statutory requirements for a perfect and complete injunction bond it includes other conditions and obligations which are not authorized by the statute, but which nevertheless are not against the law or in violation of public policy, the bond will not be vitiated thereby, but will be held valid, the extraneous matter being regarded as surplusage.” For the first of these propositions the author cites Holliday v. Myers,
In Pratt v. Wright, supra, a suit against a guardian and his sureties, the doctrine of these last two cases was so far qualified as to hold the bond valid and binding to the extent of the provisions contained in it which were authorized by the law. The court decided : “A guardian’s bond contains a covenant to indemnify the justiсes constituting the court at the time it is taken. Although this is not required by the statute, and therefore not obligatory, it does not avoid the bond.” In referring to the opinion of Story, Judge, in U. S. v. Bradley,
The court, in its opinion, says: The obligоrs appear to have voluntarily assumed a stronger obligation and they are bound thereby. It is very probable that the value of the property levied on was admitted to be fully equal to the amount of the execution, and therefore the alternative agreement to pay the amount of the execution with costs was considered of no practical importance. Be that as it may, no cause is shown why the obligors shall not be held to a ful-filment of the obligation which they assumed ;” citing the other two cases cited by Murfree. It does not appear that the court would have held the obligors bound to pay the execution, if it had been shown that the value of the property was much less than the debt. The implication from what is said by the court is entirely consistent with the idea that it would not have done so. But however this may be, the cases
Jameson v. Kelly,
But, without reference to the decisions in other States, it seems to me the decisions of the courts of Virginia and this State, hereinbefore referred to, have fully settled the law in this State that an injunction bond containing conditions in excess of those required by the statute or the order of the judge is good as to the conditions so required, but not binding on the obligors as to those in excess. These bonds are executed under the requirements of the law in order to obtain the benefit of legal process. They are not voluntary in thе sense that they are willingly executed,
REVERSED.
Concurrence Opinion
concurring:
It seems to me in this case the words “all damages as may be awarded” in the order of the court granting the injunction must be interpreted as “all damages as may be sustained,” if we would give any meaning whatever to this part of the injunction order. It must be so interpreted, as in such a chancery suit as this injunction order was entered in, the court could not'under the law award any damages. In this case the damages sustained would include the loss of the plaintiff’s debt of $1,145.26, decreed in his favor against Edward Purcell in this injunction cause. This being the case, I do not see that it is necessary in this case to decide the question whether the addition to the condition required by the injunction order which appears in the injunction bond that “Edward Purcell shall pay and satisfy any decree or order that may be awarded against him” is to be regarded as surplusage only, or as binding on the obligors on this bond. Eor in either case the responsibilities of the obligors would be the same in this case, that is, it would be the penalty of the bond. I think, therefore, that as this is a very important legal question, and it is unnecessary to decide it in this case, it should be left undecided till some case comes before us that requires its decision. I concur in all other respects in Judge Woods’s opinion,