Eakle v. Smith

Crain, J., delivered tlie opinion of this Court. This was an. action instituted by the appellant against the appellee on an injunction bond and the breaches are assigned in the narr.; the bond declared on was given on the 29th of March, 1855, and recited “that whereas the said George W. Smith is about to obtain from the Circuit Court for Washington County, sitting as a Court of Equity, an injunction to stay proceedings at law, in. an action of ejectment lately exhibited in the said Circuit Court by the said Jacob Eakle against a certain Amos Eakle, and which is now pending in said Court, whereby the said Jacob Eakle seeks to recover certain lands in the declaration filed in said cause, mentioned. Now the condition of the above obligation is such, that if the said George W.- Smith shall . prosecute the said writ of injunction with effect, &c., then the obligation to be null and void to this declaration the appellee, the defendant below, pleaded eight pleas, to all of which the appellant demurred generally, except the seventh plea, on which issue was taken — the appellee joined issue on the demurrer, and the Court rendered judgment in his favor. A general demurrer to the pleas confesses all facts stated in them, provided such facts be well pleaded and the Court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it. Stephens on Pleading, 143, 19 Md., 239 ; 12 East., 385 to 388. Upon all the facts stated in the declaration and the pleas, was the appellant entitled to maintain his' action against the appellee ? It is alleged that at the November Term, 1854, of the Circuit Court for Washington County, there was an action of ejectment depending in which Jacob Eakle, the appellant, was plaintiff, and one Amos [481] Ealde was defendant, and that the case was entered enjoined at that Term of the Court. The bond on which this suit was instituted was executed on the 29th of March, 1855; after its execution, it is admitted no writ of injunction issued and it is so stated in the plaintiff's declaration. The condition is to prosecute the said writ of injunction with effect, and if no writ of injunction issued in virtue of it, it ivas impossible for the appellee, the obligor in the bond, to prosecute with effect a writ which never issued; his responsibility by the recital and condition of the bond, did not commence until the writ issued. In Burgess vs. Lloyd, 7 Md., 178, it was held the recital, that the writ of injunction had been obtained, operated as an estoppel, and the obligor could not deny it; in this cáse the recital is, that he is about to obtain an injunction, and the plaintiff, before he can maintain his action, must aver in his declaration, that the writ had issued, that he had been restrained by it and that it had been dissolved or disposed of. The condition of the bond is made for the protection of the obligor, and until the obligee can assign a breach within the condition of the bond according to its letter and terms, he cannot maintain an action. The rule of law is, that the obligation is defined and limited by the terms of the condition, and cannot be extended beyond the legal import of the words used in the condition. In a bond like this, the protection is extended to the principal as well as the security. It is a legal obligation to be discharged according to its condition, and cannot be enlarged or extended against the principal or sureties by implication or equitable considerations. This Court has very strictly construed injunction bonds. In the case of Morgan against Blackiston, 5 H. & J., 61, it was decided, that an injunction bond was only binding with reference to the judgment recited and not another. And in the case of Morgan vs. Morgan, 4 G. & J., 401, it was held, that it [482] was no "breach, of an injunction bond conditioned for the prosecution of a writ of injunction with effect in the Court of Chancery, that it was not so prosecuted on the Equity side of St. Mary’s County Court, in which the bond had been filed and approved and from which the injunction had issued. In both of these cases, writs of injunction actually issued and the parties subjected to their restraint, yet it was held, that there was no breach of the conditions, because of the non application of the letter of the bonds. In this case no injunction ever issued in virtue of the bond, and the appellant was never restrained by the writ contemplated in it. But we are asked to construe this bond as applying to the entry in the ejectment case made at November Term,' 1854, but we cannot so apply it, without violating the recital of the bond and its condition. No writ of injunction issued in virtue of the bond, and the appellant nevfer suffered any restraint or damage from it. But it is alleged that this entry was made by the agreement of the counsel and was to stand in lieu of the writ of injunction. This averment was denied by the fourth and fifth pleas of the defendant, and by the demurrer of the plaintiff the facts relied on in them are admitted. But admitting that the agreement was designed to take the place of the writ of injunction, and the parties thought themselves bound by it and so treated it, the remedy of the appellant would be upon the agreement and not upon the bond. Freeman vs. Adams, 9 Johns. Rep., 115. In the argument of this cause, it was earnestly urged by the counsel for the appellant, that as the appellee was aware of the order for the injunction, it was his duty to respect it and save himself from the consequences of a contempt of the Court. It is true a Court of Chancery in vindication of the power and authority of the Court, will have its process respected, and will punish a party attempting to elude or evade it, but for not respecting the [483] power of the Court, the appellant cannot claim a forfeiture of a bond conditioned to prosecute a writ of injunction with effect irrespective of the writ. In some cases Courts of Equity have granted injunctions without requiring more than a nominal bond, but a bond is given as a pledge for the action of the party obtaining the injunction, not coercive of, or an inducement to the prudence of the party standing in fear of the Court. Until the writ was obtained and the party actually restrained by it, the bond was inoperative and there could be no breach of the condition. 3 Daniels, Ch. Pra., 1908 ; 18 Ves., 522, 523. (Decided 17th July, 1867.) Entertaining these views, we affirm the judgment with costs. Judgment affirmed.