Falls v. McAffee, 23 N.C. 139, 1 Ired. 139 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 139, 1 Ired. 139

ANDREW FALLS et al. vs. ABNER McAFFEE et. al.

Where the condition of an injunction bond is, that the complainants “shall well and truly indemnify the obligees for all damages they may sustain by wrongfully suing out the injunction,” it will not be necessary for the obligees, upon a dissolution of the injunction, to bring an action on the case to ascertain the-damages sustained by them before suing upon the bond.

In a suit at law, upon an injunction bond, it is not necessary for the obligee to state in his declaration, or prove upon the trial, an order of the Court of Equity allowing the withdrawal of the bond, and permitting a suit to be brought upon it.

This was an action of debt, upon a bond given by the present defendants, upon obtaining an injunction in Equity.. The condition was, that the complainants should “ well and truly indemnify” the defendants in equity “for all damages^ they might sustain, by reason of the wrongful suing out said injunction.”

Upon the trial, at Lincoln, on the last circuit, before his honor Judge Settle, it appeared that the injunction had been dissolved; but it was objected, by the defendants, that the plaiutiffs could not recover, without shewing an order of the Court of. Equity, allowing the withdrawal of the bond from that Court, and permitting a suit to be brought upon it. Secondly, that an action of debt would not lie against the principals in the injunction bond, until the damages sustained by reason of suing out the injunction had been ascertained in an action on the case. The Court intimated an opinion against the plaintiffs upon both points; in submission to which they suffered a nonsuit and appealed.

Badger for the plaintiffs.

W. J. Alexander for the defendants.

Ruffin, Chief Justice.

The Court entertains an opinion different from that of his Honor, upon both of the points made at the trial. •

There was no necessity for another action to ascertain the plaintiffs’ damages, before bringing debt on the bond, as the words of the condition are, if the obligors “ shall well and truly indemnify” the obligees “ for all damages they may suswrongfully suing out said injunction.” The langaage of the contract, therefore, plainly authorises this action in the first instance. This case is not like that of Davis vs. 2 Dev. & Bat. Rep. 360, in which the condition of bond was for the payment of “ such damages as shall be of the complainants in equity. The decision turned on the word “recovered” as contrasted with “sustained,” as is stated in the very beginning of the opinion. present case, therefore, falls within the distinction there expressed, according to which, this action will well lie to recover such damages, if any, as the obligees may be able to shew the'y did sustain.

Gully,z liat. Rep. tromihis.

As to the other point, it is clear that is between the obligees and the Court of Equity; and that the Court of Law can take no notice of the means by which the"obligees obtained possession of the bond. It is the ordinary case of an action of debt on a bond with collateral condition, by the obligees against the obligors; and the declaration need contain no averment of leave to bring the action being given by the Court of Equity; and, consequently, it need not be proved. The declaration must, no doubt, state such proceedings in the suit in Equity as put an end to the injunction and no longer left it in force; but it need not set out an order to deliver the bond to the obligees. It is sufficient for the Court of Law, that the plaintiff there has the bond, of which he makes proferí. Judgment reversed and venire de novo.

Per, Curiam. JuJgment reversed.