White v. Pettijohn, 23 N.C. 52, 1 Ired. 52 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 52, 1 Ired. 52

ASIA WHITE vs. JOHN C. PETTIJOHN et al.

The condition of a bond given upon obtaining a writ of sequestration on a Judge’s fiat, in a suit in equity, that the plaintiff “ shall prosecute his said suit with effect, or in case he fails therein, shall well and truly indemnify the defendant for all damages which he may sustain by reason of the filing of said bill, and the suing out of said writs, and shall further do and receive what the said Court shall consider in that behalf,” is not broken by any thing short of the abandonment of his suit by the plaintiff, or bis defeat therein. Hence a decretal order, in the progress of the cause, that the sequestration be removed and the sequestered property restored to the possession of the defendant, and that he have leave to put the bond in suit, but without finally deciding the matters in contestation between the parties, will not authorise a recovery upon the bond for a breach of its conditions.

In April, 1839, William White and John C. Pettijohn filed their bill of complaint against Asia White, wherein they claimed to have an interest in remainder in certain slaves that were in the possession of -the said Asia White, and of which they alleged that she was tenant during her life; and by the said bill they prayed that she should answer the allegations thereof on oath; that a writ of injunction or ne exeat might issue to restrain the said Asia from selling, removing, or in any way disposing of the said slaves, so as to defeatthe interests of the complainants; that she should be bound in such sum as the court should judge right for the performance of said injunction, as well as such other order and decree as might be made in the premises; and for such other and further relief in the premises, by sequestration or otherwise, as should be deemed right and equitable. Upon an affidavit by the complainants, that the matters of fact set forth in their bill were true, they obtained a Judge’s fiat directing the Clerk and Master of the Court of Equity for the county of Washington, upon the complainants’ giving bond and security in the penal sum of one thousand dollars to indemnify the defendant, to issue a writ of ne exeat to restrain the defendant from carrying the slaves mentioned in the bill out of the State; and also an order to the sheriff to take the slaves and hire them out until the next term of the Court of Equity for that county, unless the defendant should enter into bond and security, in the sum of three thousand dollars, to have the said slaves at the said term of the said court, to abide the order and disposition thereof. Thereupon the defendants executed the bond, which is the subject matter of the present action. The condition of this instrument recited the filing by White and Pettijohn of their bill of complaint, and the fiat made thereon by the Judge, and then proceeded as follows: “ Now, therefore, if the said White and Pettijohn shall prosecute their said suit with effect, or in case they fail therein, if they shall well and truly indemnify the said Asia White for all damages which she may sustain by reason of the filing of said bill, and the suing out of the said writs, and shall further do and receive what the said Court shall consider in that behalf, then the above obligation to be void.” A writ thereupon issued returnable to the September Term of said Court, directed to the sheriff, and commanding him, unless the defendant in the suit in equity, Asia White, should give bond and surety for the forthcoming of the slaves aforesaid, at that term, to be disposed of as the court should order, to take the same into his possession, and hire them out until the said term, and so to provide as then and there to have the same forthcoming to answer such order, judgment or decree as the court might make. In obedience to this writ, the sheriff took the slaves into his possession, and hired them out until the next court, and took bonds for their forthcoming to await the order thereof. A writ also issued directed to the said Asia, enjoining her not to send the slaves out of the State, and also a writ of subpoena, with a copy of the bill, commanding her to make answer to the facts therein charged. She accordingly put in an answer at September Term, 1839, to the bill of the complainants, and 'it appeared that then a decretal order was made as follows: “ By the Court, this cause coming on to be heard upon the bill of complaint .and the answer thereto, it is ordered, adjudged and decreed that the sequestration be removed; that the sheriff return the negroes to the defendant; that he pay over to her either the money or the bonds for the hire of them; that the defendant be enjoined from selling or removing the negroes out of the jurisdiction of this court; that the complainants have leave to file an amended bill, and to make parties; that the defendant ^ave Ieave to answer the amended bill, and to put the injunction bond in suit; and that the costs of this suit await the decision Thereupon the plaintiff brought this action, and assigned for a breach of the condition that the said White and Pettijohn had failed in the prosecution of their said suit, and did not indemnify her against certain damages which she had sustained thereby. Upon the trial at Washington, on the last circuit, before his honor Judge Pearson, the only question was, whether the said White and Pettijohn had failed to prosecute thek suit within the meaning of the condition of the- bond. Under the instructions of his Honor, the jury returned a verdict for the plaintiff, and the defendants appealed.

ilf. Haughton for the defendants.

J H. Bryan for the plaintiff.

Gaston, Judge,

after stating the facts as above, proceeded as follows: We are of opinion that the facts shewn do not make out such a failure, upon the ground that from them it appears that the suit is undecided, and victory or defeat, success or failure, remains to be ascertained by the result of that suit.

It may not be easy for a court of law to pronounce upon the effect of the decretal order that was made in the equity suit; but it cannot fail to see that that order does not determine, nor profess to determine the controversy between the parties. It makes, indeed, a different arrangement for the custody of the slaves than that which was temporarily directed upon the filing of the bill, and which had expired by-its own limitation. But for some purpose or other, it continues and upholds the injunction, which had issued to restrain the defendant from carrying the negroes out of the State, and concludes with authorising the plaintiffs and- the defendant to amend their respective allegations. Which of the parties gets the advantage in this, their first encounter, it is unnecessary to enquire. It is enough for the purposes- of this suit, that the contest is not ended.

Failure, used in connection with any enterprise, in its ordinary and obvious sense, means abandonment or defeat. There may be checks — there may be disappointments— there may be auguries of ill omen — but so long as the enterprise is prosecuted and its result unascertained, there is no failttre. That the term failure, in the bond before us, was used in this, its ordinary sense, is rendered more probable by the manifest resemblance between this bond and the prosecution bond given by plaintiffs in suits at law. The clerk of every court of law is required, before he issues any writ or leading process, to take sufficient security from the person so applying, “ conditioned that he will prosecute such suit, and, in ease of failure, pay to the defendant all such costs and damages as may be awarded against him.” What is meant in a bond taken under this act, by “ prosecution of the suit” —and by “ failure” therein — is beyond doubt. They mean, on the one hand, a successful prosecution unto final judgment — and on the other, a voluntary abandonment of the suit, or a final judgment against the plaintiff. Now, what good reason can be assigned why the same terms used in the condition of the bond before us — so strikingly.alike the ordinary bond given by every plaintiff on instituting a suit at law — should receive a different meaning? The error into which the court below has fallen, was probably occasioned by regarding the bond as an injunction bond, and thence inferring that the condition thereof ought to be interpreted by analogy to that which prevails in ordinary injunction bonds. But it is to be noticed, that the condition of these, that is to say, wherever an injunction issues to stay execution of a judgment at law, is positively prescribed by statute: u the complainant shall enter into bond with sufficient security fore the Master of the Court of Equity, whence the .- j. „ ^ ^ t r t , . tion issues, for the payment into court of the sum ed of, and all costs, uyon the dissolution of the injunction.” The specific contingency upon which the entire obligation rests, is the dissolution of that injunction. If it be dissolved, the bond necessarily becomes absolute. But no statute prescribes the form in which any other injunction bond shall given. Upon the sound discretion of the Judge, who makes a fiat for such injunction, depends the security to be demand-e(j from the applicant. And upon the terms of that security depends the liability of him or them who enter into it.

The dis’in0,10n bebond given taming a a Judge’s fiat an ordi”^Yhond °" given upon fnjunctioX me^alhi!'

The order of the Court of Equity that the plaintiff have leave to put the bond in suit, lias no other effect than to save her from the penalties of a contempt, for bringing an action thereon without permission. It cannot modify the character of the instrument.

It is the opinion.of this Court, that the judgment below is erroneous, and ought to be reversed, and a venire de novo awarded.

Per Curiam. Judgment reversed.