Davis v. Gully, 19 N.C. 360, 2 Dev. & Bat. 360 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 360, 2 Dev. & Bat. 360

JONES DAVIS v. JOHN G. GULLY, et. al.

A bond with a condition to bo v.oid’ upon the payment of such damages as Blight be recovered of the principal obligor, for wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall be able to satisfy any judgment obtained against him, in an action on the ease, for wrongfully filing the bill i and no action can be brought on such bond, until the obligee has obtained such a judgment, and foiled to procures satisfaction.

This was an action of beb.t, upon a bond given by the defendants, upon suing a writ to sequester sundry negroes, in the hands of the present plaintiff. Plea,, non infregit. conventiónem.

On the trial, before his Honor Judge Bailey, at Johnston,, on the last Circuit, the case appeared to be as follows: — A bill in equity was instituted by John G. Gully and others, against the present plaintiff, Jones Davis, in the Court of Equity for the county of Johnston, and a fiat made thereupon for issuing writs of ne exeat apd sequestration, upop the complainant’s entering into bond with sufficient security in the sum of five thousand dollars, with condition to be void, on the payment of such damages as might be recovered by the defendant, for wrongfully suing forth the said writs. In consequence of this fiat, the present defendants executed their obligation to the plaintiff, in. the penal sum of five thousand dollars, upon condition to be void upon payment of all such costs and damages that the said Jones Davis” (the present plaintiff) “ shall recover against John G. Gully and the other complainants, for wrongfully bringing a suit against him in the Court of Equity for Johnston County.”' The writ of sequestration, issued. Upop the coming in of Davis’s answer, the com-, plainants had leave to amend their bill, and it was ordered' that the writ of sequestration be dissolved, on defendant’s, giving special bail, in the sum of two thousand dollars., Thereupon, at the same term, an amended bill was filed*,making some alteration in the parties complainants; and by consent of the parties on both sides, an interlocutory o.rder was made, whereby the matter in controversy was, referred to the award of two professional gentlemen, with an agreement, that if they should decide in favour of the complainants, they should award to them in lieu of the negroes claimed by their bill, the money which was due from one John P. Yeargan, on account of the purchase of the said negroes from the then defendant, Jones Davis, and the sequestration was set aside. At the succeeding term, no award having been returned, the order of reference was discharged; and it was ordered by the Court, that the defendant should file with the clerk and master, the bond of Yeargan; that the same should be collected by the said clerk and master, as soon as it should become due, and the proceeds kept subject to the disposition of the Court. When the suit in equity was brought to a final hearing, the bill of the complainants was dismissed; and it was ordered, that the defendant have leave to put in suit the bond given by the complainants for the recovery of such damages as the defendant may have sustained by the wrongful suing out of the writ of ne exeat, or order of sequestration prayed and obtained by the complainants. Thereupon Jones Davis instituted this action, and on the trial offered, as evidence of a breach of the condition of the bond, testimony tending to show that he had sustained damage, by reason that Yeargan’s bond > had not béen collected by the clerk and master as it might have been, had its collection been pressed with diligence; and that the damage so sustained had not been paid to him. It being admitted by the plaintiff’s counsel, that no suit had been brought against Gully, or any of the other complainants in the suit in equity for wrongfully instituting said suit, and, of course, no recovery of damages, effected by the plaintiff, by reason thereof, the Court was of opinion, that the testimony offered was insufficient to establish a breach of the condition, of the .obligation ; and thereupon the plaintiff submitted to a nonsuit, and appealed.

Badger and Devereux, for the plaintiff.

W. II. Haywood, for the defendants.

Gaston, Judge,

after stating the case as above, proceeded as follows; — Several points were made here in support of the opinion below: but we deem it necessary to notice one only, for that appears to us to be decisive.

The condition is not for the payment of such damages as shall be sustained by the plaintiff for wrongfully instituting the suit in equity, but for the payment of such as shall be recovered by the plaintiff for wrongfully instituting the suit. The obvious and unambiguous meaning of this condition is, that the obligors guaranty the amount of any judgment which the plaintiff may obtain in an action to be brought against the complainants for the injurious institution of their suit. There can be no question, but that conditions shall be so expounded as to serve the intent of the parties; and that when that intent can be satisfactorily collected from the instrument, it'shall not be defeated, by an adherence to the mere letter. But what is there upon this instrument, to warrant the inference of any other intent than that which it so distinctly expresses? It is argued, that the intent expressed is absurd. Were it so, we should have great difficulty in implying an intention contrary to, or different from that expressed ; but it does not appear to us absurd. The bill filed prayed for a writ very similar in its operation to an attachment at law ; and it was reasonable to require, upon issuing such a writ, an indemnity from injury, analogous to that which the law provides on, issuing attachments. In these cases it is enacted, act of 1777, (Rev. c. 115, sec. 26,) that every justice, before issuing the attachment, shall take bond and security conditioned for satisfying “ all damages which shall be recovered against the plaintiff in any suit or suits which may he brought against him for wrongfully suing out such attachment.” It is impossible to doubt the meaning of the terms here employed : and it is manifest, that a condition thus expressed is not broken until after a judgment obtained in an action for wrongfully suing out the attachment, and a refusal or neglect of the obligors to pay the damages recovered in such judgment. The term “ recovered,” in" the condition of the bond under consideration, means the same with “ recovered” in the condition of an attachment bond prescribed by the statute, and its meaning in the latter, is fixed, beyond controversy, by the words immediately following. We hold, also, that the words “ for wrongfully bringing suit in the Court of Equity,’’must be interpreted as .the analogous words in the condition of an attachment bond have been interpreted — the bringing of a suit maliciously, and without probable cause. Williams v. Hunter, 3 Hawks, 345. It would be premature in us to decide what evidence would be demanded of the plaintiff in an action on the. case, to sustain the allegation that the bill in equity had been instituted for the purpose of oppression and wrong, but we perceive no more difficulty in establishing the allegation, if true, than there was in the case of Hackney v. Mathews, which was brought for maliciously impleading the plaintiffin the Ecclesiastical Court: 1 Vent. 86; 2 Inst. 562: or in the case of Brown v. Chapman, for maliciously suing out a commission of bankruptcy. 1 Black. Rep. 427. An action on the case lies against any person who maliciously and without probable cause, prosecutes another before any tribunal, and thereby subjects him to an injury, either in his person, property or reputation. The purpose of the bond in this case, was to secure the plaintiff against the inefficiency of this common law remedy, if the complainants in the suit in equity sdiould be unable to respond the damages.

A court of law can determine whether a’ suit in equity was wrongfully brought or not.

An action on the ease lies against any person who maliciously and without probable cause prosecutes another before any tribunal, and thereby subjects him to an., injury, either in his person, property, or reputation.

Per Curiam. Judgment affirmed.