40 W. Va. 455 | W. Va. | 1895
This was an action of debt upon an injunction bond brought in the name of the state of West Virginia (which sued for the use and benefit of D. F. Haymond, sheriff of Ritchie county, W. Va., and as such administrator of the estate of Isaac Lambert, deceased, who sued for the use and benefit of James Taylor) against Cyrus Hall and A. J. Patton, in the Circuit Court of Ritchie county.
The suit was brought upon an injunction bond, the condition of which as set forth in the plaintiff’s declaration is as follows: “That is to say, the condition of the above obligation is such that whereas, John S. Porter, for the use of Isaac Lambert, obtained a judgment against the said Cyrus Hall and W. M. Patton at the June term of the County
For assigning the breach of said condition the plaintiff •says that: “Afterwards, to wit, at a Circuit Court for the said county of Ritchie, held on the 26th day of October, 1877, it was by the said Circuit Court, amongst other things, adjudged, ordered and decreed that the injunction theretofore awarded in the said cause in said condition mentioned be, and the same was, dissolved, and that the said James Taylor recover against the plaintiffs in said chancery cause his costs by him about his suit in that behalf expended. And the plaintiff in fact further says that the said costs last mentioned amount to a large sum of money, to wit, the sum of five hundred dollars. And the plaintiff in fact says that said decree so dissolving said injunction was afterwards, to wit, on the 12th day of November, 1881, by the Supreme Court of Appeals of West Virginia, so far as it dissolved said injunction, with costs against the said plaintiffs in said chancery suit, affirmed. And the plaintiff in fact says that the damages to which he is entitled at the rate of ten per cent, per annum from the time the said injunction took effect until the said dissolution thereof on such sum as appears
It does not appear from the record that the demurrer was ever acted upon by the court. This Court, however, in the case of Hood v. Maxwell, 1 W. Va. 219, held that “a judgment on a verdict for the plaintiff virtually overrules all demurrers-to the declaration, and each count thereof,” and the court in the case under consideration having gone on and given judgment for the plaintiff, must be considered to have overruled the defendants’ demurrer.
Did the court err in so ruling? The plaintiff in this case appears from the record to have recovered judgment for a large amount of damages, not only against the principal, but the surety in said injunction bond; and High on Injunctions (volume 2, § 1640) thus states the law: “The sureties in the bond are entitled to stand upon the precise terms of the' contract, and their liability will not be extended beyond its-terms. When, therefore, the bond, is conditioned for the payment of such damages as shall be awarded against the principal by reason of issuing the injunction, an action can not be maintained again st the sureties when at is not averred that any damages were so awarded. So if the bond is conditioned for the payment of such costs and damages as may be recovered against the principal for the wrongful suing out of the injunction, there can be no recovery upon the bond
In the case of Tarpey v. Shillenberger, 10 Cal. 390, the supreme court of that state, in an action against sureties on an injunction bond, the condition of which was that the plaintiff in the suit for whom the sureties undertook, should pay all damages and costs that should be awarded against the plaintiff by virtue of the issuing of said injunction by any competent court and the complaint did not aver that any damages had been awarded, held that such complaint is fatally defective. And in the case of Anderson v. Falconer, 34 Miss. 257, it was held that an injunction bond which is conditioned for the payment by the complainant of all such damages as shall be awarded against him “is no security for the general damages which the obligee may sustain from the injunction, but only for such as shall be properly awarded against the complainant; and hence, in an action on such bond, unless the declaration avers that damages have been awarded against the complainant, and that he has failed to
Again, this bond, in pursuance of the provisions of section 1, of chapter 10, of the Code, was made payable to the state of West Virginia; and in section 2 of the same chapter it is provided that suits may be prosecuted from time to time in the name of the state, if the bonds be so payable, for the benefit of the person injured by a breach of the condition of any such bond, until damages are recovered in the aggregate equal to the penalty thereof; but the declaration must show that the relator has been injured by a breach of the condition of the bond. The relator in this declaration, in assigning the breach, avers that payment has not been made of the judgment in the condition of the bonds mentioned, nor of the costs awarded against said Hall and Patton in said injunction case, nor of the said damages; but the declaration fails to show how the relator, James Taylor, acquired any title to said original judgment of two hundred and fifty dollars which John S. Porter to use of Isaac Lambert, obtained in the County Court of Ritchie county against Cyrus Hall and William M. Patton at the June term, 1858; and it is incumbent on said relator to show title to said judgment before he would be entitled to recover damages on account of its collection being restrained by injunction. Barton, in his Law Practice (volume 1, p. 166) in speaking of fiduciary bonds, says: “The action of debt may be maintained upon bonds executed by fiduciaries, such as executors, administrators, guardians, committees, trustees, and receivers, which are made payable to the commonwealth and conditioned for the faithful performance of their several duties by the various officers who execute them. The suit is brought in the name of the commonwealth at the relation of the claimant; but the relator must be the party having
There is nothing, however, set forth in the declaration we are considering that shows the relator’s right to recover in the action. It is true that the declaration contains the averment tha,t the damaaes to which he (plaintiff) is entitled at the rate of ten per cent, per annum from the time the said injunction took effect until the dissolution thereof on such sum as appears to be due, including the costs recovered at law, have been ascertained to be, and are in fact, one thous- and dollars, but it neither avers the ownership of the judgment nor in any manner states how he acquired title to said judgment, interests and costs, nor does said declaration state how said relator was damaged by the delay caused in the collection of said judgment by reason of said injunction.
In the case of Tazewell v. McCandlish, the Court of Appeals of Virginia, in 10 Leigh, p. 116, ruled upon a similar question as follows: “In debt in a Circuit Court, upon the official bond of the marshal of the late superior court of chancery for the district, the breach assigned in the declaration is that, the chancery court having, in a suit therein pending, in which the relator was defendant, made an order directing the marshall to take possession of certain slaves — averred to be the property of the relator — and hire them out until the further order of the court, the marshal accordingly took possession of the slaves, hired them out, and collected the hires, but failed to pay them over to the relator, ‘to whom they belonged, and who was entitled to receive them from the marshal, as would appear by reference to the record and proceedings in the said suit remaining in the office of the Circuit Court. On' general demurrer to the declaration, held, the assignment of the breach is defective in substance, the title of the relator to demand and receive the hires from the marshal not being sufficiently set forth.’ ” Tucker, President, in delivering the opinion of the court, said: “I am of opinion that the judgment in this case — which sustained the demurrer- — should be affirmed, the declaration being radically defective, as it shows no right of action in the rela
For these reasons the court erred in overruling the demurrer. The judgment complained of must be reversed, and the cause remanded, with costs.