Gully v. Gully, 8 N.C. 20, 1 Hawks 20 (1820)

June 1820 · Supreme Court of North Carolina
8 N.C. 20, 1 Hawks 20
Robert Gully v. J. G. Gully and Watson

Robert Gully v. J. G. Gully and Watson.

1-From Wayne-

IN EQUITY.-

The act of 1800, c. 9, does not require a bond of any particular form tube given for obtaining an injunction.

The condition of a bond will be so construed by rejecting insensible words, as to fulfil the intent of the parties.

Hence, if a bond given upon obtaining an injunction be conditioned, “ if “ the said R. G. (the Complainant) should dissolve the injunction, and " pay the sum recovered at law and interest,” the words “ should dis- “ solve the injunction, and” will be rejected as insensible.

It is no objection to such a bond that it is taken for double tlie amount of the recovery at law : nor that it provides in the condition for the payment of interest on the sum recovered, should the injunction be dissolved.

The Defendants here had obtained a judgment at law against the Complainant for the sum of twelve hundred and three dollars and twenty cents, besides costs of suit. The Complainant then exhibited his bill in Equity, and obtained a Judge’s fiat for an injunction upon his entering *21into bond with security according to law. The Master took the bond with security in the sum of 2,406 dollars 40 cents, with condition (reciting the judgment and the order for the injunction) that “ if the said Robert should dissolve “ the injunction, and pay into the Clerk and Master’s “ office the said sum of $1,203 20 and interest, then the “ obligation to be void, otherwise to remain, in full force.”

Upon the coming in of the answers, the case was heard upon the bill and answers, and a motion to dissolve the injunction, which was done; and then a decree made against the Complainant and his. surety “ on their bond “ for $2,406 40, the sum mentioned therein, to be dis- “ charged by the payment of the judgment.at law and all “ costs.” From which decree the Complainant appealed to this Court.

And Mordecai now contended for him, that wherever a right is withheld by a public officer until a bond be given, and the bond vary from that prescribed, by the statute, it is void.* And that wherever a public officer transcends his authority, his act is not only void for the excess, but is altogether void.† The statute 1800, c. 9', directs the bond to be taken “ for the payment into Cóurt of the sum “ complained of and all costs upon the dissolution of the “ injunction.” The bond does not pursue the statute. The act does not authorise the taking of a bond to be discharged on performance of a collateral act; but for the payment of the sum complained of and costs. The statute does not authorise the taking a bond for a greater sum than that complained of and costs; this-is for double that sum,‡ and the penalty cannot be looked upon as mere form j for the law regards it as substance. The penal bond of an infant, for instance, is absolutely void, though payment of the sum attempted to be secured might have been enforced, if secured by a single bill.

*22But admitting these to be but formal matters, which the Court will therefore overlook, still the condition is essentially defective., The condition is, “ if the Complain- “ a?li shall dissolve the injunction, and pay $1,203 20, “ with interest.”’ Hence, if the injunction he sustained by the Court, the bond is forfeited — if it be dissolved by the Court, it is also forfeited ,• and it can only be saved by the Complainant’s dismissing his bill himself (and thereby dissolving bis injunction) and paying the debt and costs. In'other words, he can only get rid of the penalty by abandoning his claim to relief. The statute docs not provide for interest; but the officer compels him to secure the interest, and thereby makes the condition essentially different from that prescribed by the act. Judgments did not bear interest until 1807, which was long after the passage of the act under which this bond was taken. He also said, the decree itself was wrong; because the condition of the bond is for payment of the debt and interest recovered at law,, and the decree is for the debt and all costs.

Gaston, for the Defendants.

The objections to the sufficiency of this bond are entitled to no favor, and ought to be strictly considered. But the bond is, in fact, sufficient. The form of the injunction bond is not prescribed by the statute $ and the act 1810, c. 12, jises the words “ in all “ cases where bonds are given on the obtaining of an injunction,” the remedy shall be the same as upon appeal bonds. The act 1800, c. 9, without declaring the form, declares the object of the bond; and any bond which secures that object, shall be effectual. The condition of the bond is cither sensible or insensible; and the objection is answered either way. If the latter, the bond is single, and should be read as such. Such a bond is not forbidden by the. statute; and the law gives the condition as well as though it had been expressed.* But the condition is not insensible. A construction will, if practicable, be always *23put on conditions, so as to make them sensible. Thus, in a bond conditioned for the payment of one hundred pounds by instalments, until the sum of one pounds be paid, the word “ hundred” will be supplied ;* and conditions will be coristrued according to the true intent and,meaning of the parties, without minute attention to the words.† The case of the Governor v. Mellan, cited on the other side, shews that bonds taken by a public officer, which are not pursuant to a statute, are not always void; but they will be supported in favor of the justice of the case. Interest is given by a statute on debts recovered at law, and forms part of the judgment, and therefore ought to be included in the bond ; and, as for the costs, they are expressly mentioned in the act of 1800; and, therefore, a decree was properly made for them.

Tavuor, Chief-Justice,

after stating the case, proceeded to deliver the opinion of the Court:

The act of Assembly does not prescribe the form of the condition of the bond; but the obvious design of it was to provide for the payment of the sum stayed and all costs, upon the dissolution of the injunction. Any condition, therefore, which, by a reasonable construction, stipulates for that object, ought to be supported! That the Complainant should dissolve his own injunction is what, we may safely conclude, was never meant. It is manifestly a clerical error, and inserted instead of the words “ if J. “ G. Gully and Watson shall dissolve the injunction,” &c. In that sense it ought to be construed to fulfil the intent of the parties, according to the case of Bache v. Proctor. But if those words be rejected as insensible and impossible, the condition still provides for the payment of the amount of the judgment. When Complainant has had the full benefit of this bond, by the advantage of a trial on the equity of his claim, it would be highly unjust that he *24should be allowed to defeat it by a critical objection j and, in such a case, I should yield to express authorities with reluctance.

The decree below is affirmed.