Gabriel Moore vs. Burwell Harton, 1 Port. 15

By Mr. Justice Thornton : This was an action of debt upon a penal bond, or bond with a condition annexed, executed by one Henry Scales, and the defendant in error, as his surety, as a condition precedent, prescribed by a chancellor before enjoining certain judgments in behalf of the defendant in error. The plaintiff has assigned as error in the proceedings below— 1st. The overruling his demurrer to the declaration. 2d.

Giving judgment for the whole amount found by the jury as damages, part of that amount being made up of '.costs recovered in the enjoined judgments, which costs; were not specified in the condition of the bond. 3d. The judgment being for a less sum than the penalty of the bond, when it should have been for the penalty, to be discharged by the payment of the damages assessed. The demurrer is contended to have been well taken, on account of the illegality of the bond, which by oyer granted, is spread upon the record.

The bond is said to be void, because it is considered to have full force and effect, if the injunction be dissolved, and this would enable suit to be brought upon it, and nominal damages recovered, though the amounts of the judgments enjoined had been paid before the7 bringing of the action. In this argument, the premises are, that nominal damages, carrying the costs, might be recovered by suit on the bond, though prior to its institution, the judgments enjoined had been discharged.

I do not consider it very material how this may be, as, even if granted, the conclusion drawn, viz: that the bond is void, does not follow. At this day, under the united influence of that ‘ spirit of emancipation from the shackles of technical rules, which generally prevails, and of our act of 1824, like the 8 and 9 of William, 3d c. s. 1, regulating proceedings on penal bonds. I would not readily admit, that even nominal damages could be recovered, if before the institution of suit on the bond, the money vvhich it was intended to secure, had been paid.

I would incline to consider the bond as wholly discharged in such case. It is in truth, and substance, like a bill single to pay money, which if paid anterior to suit brought, though after breach of the promise, would, at this day, be successfully resisted, even as to costs, if afterwards put in suit. But if it were not so, and nominal damages could be recovered, yet I cannot conclude, that therefore, the bond would be void. The bond sued here, is not a statute bond, whose form or substance is prescribed.

It is one taken in pursuance of an order of the chancellor, who imposed its execution asa condition, precedent to the arrest and suspension of execution upon the judgments recited in the bond. The features of this bond, which is the creature of the chancellor, may Le fashioned after his own sense of equity, and if it contain an onerous or oppressive condition, leading to the consequences contended for, yet we could not undertake to declare it void for that cause, when sued against, the ob-ligors. 'The chancellor imposed its execution, as the terms upon which the plaintiff’s judgments were to ho suspended.

The defendant accepted them, and cannot now bo permitted for the cause alleged, to avoid the indemnity so afforded. Having determined the bond to lie valid, the next question presented, and which is raised by the second assignment cf error, is as to the amount of damages found by the verdict, and adjudged to the plaintiff. A true understanding of the nature and office of the bond, will conduct us to a correct conclusion upon this subject. The office of the bond is to furnish a complete security to the plaintiff in the enjoined judgment, which cannot be, unless it extend the whole length of the injunction.

It is substituted for the payment of all the, money recovered, which was anciently required, and ought to be an effectual security for at least that amount. The bond in this case, though not very skilfully drawn, does, I think, by a fair construction, reach to this extent. It is composed, first of the ordinary direct obligation to pay the penal sum of twelve hundred dollars.

A recital of the two judgments enjoined, as being for $567, that an injunction had been prayed and obtained, restraining the plaintiff from collecting the amount of said judgments, and of a condition in the following words, to-wit: “ Now, the condition of the above obligation is such, that if said injunction should be dissolved, then the above obligation to be in full force, otherwise, to be void.” The argument of the objection is, that this recital of the judgments as being for $567, though the judgments were, in truth for more, and were enjoined to their whole extent, limits the recovery cf damages, to the amount so recited.

I cannot concede this effect to the mere recital in the bond of the obligor. The bond is for twelve hundred dollars, and the condition is, that the bond sliallbe in full force, if the injunction be dissolved. The literal obligation of this bond, is, to pay the sum of twelve hundred dollars, it having become absolute by the dissolution of the injunction, (and such would be the recovery at common law.) The chancellor,-however, always interpor-ed and restrained the recovery to the amount equitably due.

The object of the statute above cited, was to effect before a jury in the common law courts, and in ono suit, what the chancellor would otherwise be invoked to decree. So, that when we determine what is equitably nue on this bond, we arrive at what amount of damages should have been allowed by the jury. In this' view, we think that the costs of the judgments enjoined, should constitute a part ofthese damages.

The last error assigned, relates to the manner of entering the judgment; with regard to which, we do not consider it material, whether it be for the amount of the penalty to be discharged, by the sum assessed by the jury, or directly, for the last named amount; they being substantially the same. The judgment below is affirmed.