Lothrop v. Southworth

Martin Ch. J.: The bond upon which this action was brought was given under the requirements of the statute upon the allowance of an injunction to restrain proceedings at law. In the suit in chancery, a decree had been rendered dismissing the bill, and damages had been assessed against the complainant, and a right of [action had accrued upon the bond. Upon the trial, various objections were taken ¿to the rulings and decisions of the Court, which will be examined in their order. The objection to the introduction of the writ of restitution was properly overruled. The declaration did not purport to set out the writ in hcec verba, nor to state the precise day of its issue, but that “ afterwards, to wit,” &c., it was issued. This mode of referring to the time is not governed by the rules which obtain in cases of recital of an instrument, and the same strictness of proof where time is laid under a videlicet is not required.— See 2 Greenl. Ev. §12; 1 Ibid. §61. It is, moreover, within the provisions of §4329 of Compiled Laws; and the writ was properly allowed to be read. The same remarks will apply to the like objection made to the reading of the bond in evidence. [447] The second objection to the introduction of the bond we think was not well taken. The defendants’ counsel seems to have taken it on the hypothesis, That the bond was never delivered, but filed with the court as an escrow, and that the order of the judge was' necessary to complete the obligation— delivery being essential. We think this is not the correct view. The bond is required to be filed in the cause, it is true; but this is not to suspend delivery as in the case of an escrow, until some condition be performed, or event occur, necessary to complete the consideration, but it is a perfect obligation as soon as filed, and its delivery to the party is dependent upon its breach. Before that time, although deposited in court, it is delivered in the manner provided by law, and a right of action accrues upon its breach. The purpose of the statute in requiring a^judge’s order, was to preserve the jurisdiction of the court over it so long as might be necessary to prevent an unjust use of it; and it is answered if the court — being the same, so far as its officers are concerned — allows its use on the trial. If the plaintiff was not entitled to it, an appeal should have been made to chancery to restrain its use; the objection can not be taken in proceedings in an action at law to enforce it. If the statute required that application for leave to prosecute it should be made to the court, the want of an order granting such leave would be a valid objection perhaps; but no such power is reserved to the court. We can not perceive the force of the third objection to the reading of the bond. The objection to the introduction of the journal entries of the order dismissing the bill and for a reference to take proofs, upon the ground that the enrollment of the decree was the best evidence of such order, was obviated by the subsequent introduction of such enrollment. The admission of incompetent testimony is not error when the facts are competent to be shown, and are afterwards proven by competent evidence. We can, however, perceive no good rea [448] sons why the journal entries were not properly admitted; for they are as much the originals, as orders drawn by a solicitor and filed, and are the evidence of such orders, preserved under the immediate direction.of the court. The objection to the production of the report of the circuit court commissioner, and of the enrolled decree 'and the execution issued thereon, upon the ground that the defendant Cleveland was not bound by it, he not being- a party to the decree, will be considered with that to the ruling of the Court excluding the evidence offered by the defendants to defeat the plaintiff’s action. This latter evidence tended to shoxv (if it could prove anything) that the defendant SoxAtbworth had a defense to the plaintiff’s claim for damages, which he might have exhibited, and, for anything that appears to the contrary, did exhibit and insist upon in the proceedings in chancery. If the decree was unjust, or not satisfactory, he had his right to appeal. Not having done this, the decree is conclusive upon him. It is also conclusive upon Cleveland. His obligation as surety in the bond is to pay to Lothrop all such damages and costs as should be awarded against Southworth iix the chancei-y suit. This obligation was broken as soon as a decree awarding damages was made, and the execution thereon returned unsatisfied. It did not extend back of the decree, and relate to matters upon which it was founded. The condition was broken upon non-payment; and the proof of the breach maintains the action. This is the rule in all cases. In those cited by the defendants’ counsel where it was held that the judgment against the principal is not conclusive upion the surety, and in all others of the same character-, it is so held because the undertaking related to the cause of action: in the present case, the undertaking relates to the result. The cause was to be litigated by Lothrop and Southworth; Cleveland could not be heard in court, as he had no interest in the subject of the controversy. He, as an indifferent person, stepped in to the aid of Southworth, to enable him to prosecute his action, and undertook that [449] lie shotild abide the judgment of the Court. He pan therefore raise no question of the correctness of the decree, nor impeach it in this collateral proceeding. If he apprehends any fraudulent collusion between the parties to the decree, his remedy is in chancery for relief against the bond. If this were not the case — as the action is against principal and surety jointly — the result would be that Southworth would be permitted, under color of Cleveland’s claim of injury, to re-litigate the matters settled by the decree, by showing it to be erroneous, or by introducing new matter to diminish or obliterate the c-laiin upon which tho decree was based. This could not be done to defeat the service of the execution, if property had been found; and it can no better be done upon a proceeding subsequent to, and measurably auxiliary to, the execution. To hold otherwise, would be to introduce a dangerous and novel doctrine Into the law of remedies; viz., That when an action is brought upon a bond given for tho performance of a decree against principal and surety, the whole subject of the decree must be re-litigated, if a defense is set up impeaching it, before a joint recovery can bo had. We apprehend that such a rule would make litigation endless. The motion for a new trial should bo denied. The other Justices concurred.