nF THE STATE nv ARKANSAS. 347 Term, 1857] Blakeney as ad, vs Ferguson et al. BLAKENEY AS AD. VS. FERGUSON ET AL. T_Tnder the statute prescribing the conditinn nf an it-Blum-4-Am, fmni-1 (Dig chap: 86, sec: 18,) where there has been a decree simply dissolving the injunction: and dismissing the complainant's bill with costs, the only breach that can, legitimately. be assigned in a declaration upon the bond, is, that the complainant had failed to pay the costs awarded, The first clause in the condition of an injunction bond, is for the performance of any personal act or duty that may be imposed upon the complainant by the ileeree the seennd elause ia fnr the payment of the damages and costs, that may he decreed against him; and if no damages are awarded by the decree, under section 21. none can be recovered upon the bond, It is not competent to recover before one tribunal, upon some of the covenants in a bond, and then sue upon other covenants before another tribunal, in a ease where the party was alike liable before either tribunal at the qome timp fnr all th e co venants in the entire instrument, Duplicity in pleading was only a giound of special demurrer at commcin law and cannot he taken advantage of at all by demurrer, under our practice, and so, if either of several breaches in a declaration upon a covenant be sufficient, the declaration is good upon a demurrer. Appeal from the Circuit Court of Pulaski county. Ton Hon. JouN J. CLENDENIN, Circuit Judge. S. H. Hempstead, 'for the appellant.
348 cAsys IN THE SUPREME COURT Idakeney as ad vs. Ferguson et aL [January 1. The third breach is good, and the demurrer having been sustained to the whole declaration, the judgment must be reversed. 7 Eng. 725 ; 6 Blackf. 192; 2 Ala. 425. 2. The first and second breaches are good, because according to the real design and scope of an injunction bond, all damages occasioned b y the injunction may be recovered by the party injured, whether technically adjudged or not. Digest 593. Blakeney being entitled to the possession of the tract of land, was entitled by way of damages to the rents and profits during the time he was deprived of them by injunction. 8 Wheaton 1 ; 6 Vesey p. 87 ; 16 Ark. 181 ; 19 Ala. 344. And was entitled to recover in this action all damages sustained in consequence of the injunction. 11 B. Mon. 201 ; 10 Humph. 325 ; 1 Barb. eh. R. 613. If these d amages may be recovered in the suit in equity they may at law in a suit on the injunction bond. Jordan for the appellees. All that the plaintiff could recover in a suit upon the bond would be the costs and damages, if any be assessed, upon the dissolution of the injunction. Dig. chap. 87, sec. 18, 21, 22 ; Alitchell vs. Gibson, 14 Ark. 229 ; Troup vs. Wood, 4 J. C. R. 243 ; 2 / l athes Rep. 256. Mr. Justice HA= delivered the opinion of the Court. This was an action of debt, by the intestate of the appellant, against the appellees, in the Pulaski Circuit Court, to the De-cember term, 1854, on an injunction bond executed by them, and others not sued, the condition of which, after reciting that a portion of the appellee§ had applied for and obtained 'an injunction in a certain chancery cause pending in the Pulaski Circuit Court, against appellant's intestate, continues that "now if the said complainants shall well and truly abide the decision which may be made in this cause, and pay all sums of money that may be adjudged against them, if said injunction shall be dissolved, either in whole or in part, then this bond to be void, etc." Three breaches are assigned in the declaration: That said injunction was sued out to restrain appellant's intestate-from proceeding to execute a certain order requiring the sheriff
OF 'THE STATE OF ARRANSAS. 349 Term, 1857] Illakeney as ad, vs. Ferguson et al, of Pulaski county to put him in possession of a certain tract of land and premises, which he had before that time purchased, at judicial sale, averring the dissolution of such injunction by a competent Court, with the rendition of a decree dismissing the original bill, without prejudice, and that the costs of the suit should be paid by the complainants therein, and 'averring further that, during the pendency of said chancery suit between the issuance of the injunction and its dissolution, the appellees were kept in possession of said land and premises by force of such injunction—that, during that time, the appellees became liable under said bond, to pay for the use and occupation thereof—that they tore down and converted certain houses, timber, fixtures, etc., removed certain cotton, the produce of said land, and by the terms of said bond they are bound to pay for the same ; negativing the payment of the costs decreed in the injunction suit, etc., as well as averring the value of the use and occupation of said land and premises, as well as the amount of the damages occasioned the appellant by the other grievances complained of, etc. 2. This bleach recites the same facts averred in the first, except as to the costs decreed to be paid by the complainants on the dissolution of their injunction and the dismissal of their bill in the Court below. In other respects, it is identical with the first. 3d. This recites simply the dissolution of the injunction, the decree of the Court below dismissing the bill with costs, and negatives their pa y ment, etc. The appellees, after oyer prayed and granted, demurred to the declaration, assigning special causes thereiu applicable to each breach respectively. The demurrer was considered and sustained by the Court as to the entire declaration. Appellant excepted and appealed. The assignment questions the judgment of the Court below upon the demurrer to the declaration. The objections, taken by the demurer to the declaration, are confined exclusively to the three breaches therein, specifically,
350 CASES IN THE SUPREME COURT Blakeney as ad vs Ferguson et al. [January assigned; maintaining that the breaches are, respectively, un-wairanted liv the condition of the bond declared on. The bond in, question was executed in conformity to the following statute: "NO injunction shall be issued in any ease. Until the complainant execute a bond to the adverse party, in such sum as the Court, Judge, or Master shall deem sufficient, to secure the amount or matter to be enjoined, and all damages and costs that may be occasioned by such injunction conditioned that the complainant will abide the decree which may be made therein, and that he will pay all sums of money and costs that may be adjudged against him, if the injunction be dissolved in whole, or in part. See Digest, chap. 86, see. 18, pp. 393-'4. It is insisted on the part of the appellees, that under this statute, where there has been a decree simply dissolving the injunction and dismissing the complainant's bill with costs, (as in the case before us), there can be but one breach legitimately assigned in a declaration on the bond taken under such statute, i. e. that the complainants have faded or refused to pay the costs awarded. Whilst, on the part of the appellant, it is maintained that the injunction hind required by the statute to be taken, was designed and intended to secure to the obligee therein, whatever of damages and costs lie ma y have snstain-ed, "occasioned by such injunction," and that such damages and costs may he recovered, ( to the extent of the penalty of the bond) though none should have been awarded by the Chancellor on dissolution of the injunction, in debt on such bond. The questions involved in these propositions are interesting, both on account of their novelty and intrinsic importance. We believe that no ease has been adjudicated by this Court, as far as the Reports indicate; in which the questions before us have been determined. Several cases may be found, in which kindred questions have been decided, but growing out of appeal bonds, replevin bonds, and bonds taken under our forcible entry and detainer statute. But, on reference to these various decisions, it will be readily perceived, they were made to proceed more upon the particular statute, under which the cause Of action in question arose, than upon general principles; and
OF THE STATE OF ARKANSAS. 351 Term, 1857] Blakeney as ad. y s: Ferguson et at such, we conceive, must be the basis of our decision in the case at bar. We think there can be no doubt, from the tenor, as well as the letter of the section, in which the condition of injunction bonds is prescribed, but that it was the intention of the legislature to provide. by the bond required to be taken before injunctions should be granted in this State, for full and complete indemnity to defendants in such suits; and we think that that design has been fully accomplished by the provisions of the 18th section given above. But we cannot concur with the counsel for the appellant, in the construction he would give to that seetion. We think the design of the legislature, which we have ascribed above, may as well be accomplished by a different construction as by the one he has so earnestly contended for in his arg,riment, and that, two, without sacrificing any portion of the section under consideration. Ey recurring to the condition of the bond, prescribed by the 18th section, it will be observed that it contains two clauses: 1st "That the complainant will abide the decision, which may be made: 2d. That he will pay all sums of money and costs, that may be adjudged against him." Both these conditions to be contingent, however, upon the dissolution of "the injunction in whole or in part." What we understand to be the effPot and R14-1 1_ ,0 4 the first clause in th-condition, is, that the complainant and his sureties obligate themselves, in ease the Chancellor on dissolving the injunction should impose, by decree, upon the complainant, the performance of any personal act, or duty connected with the subject of the suit, and of benefit to the adverse party, that he will do it, or forfeit the penalty ; and what we understand by the second clanse in the condition of the bond, is, that the complainant and his secnreties obligate themselves to pay, to the obligee, whatever of damages and costs the Chancellor may award him on the dissolution of the injunction:—The statute conternplat-ing that the Chancellor, with a jury, could as well determine what amount of costs and damages the party had sustained" by such injmwtion" as if the same facts were referred to a Court of
CASES IN TIIE SUPREME COURT Blakeney as ad. vs. Ferguson et al [January law , and thereby avoid circuity of remedy, and a multiplicity of snits, which it is the policy of the law to prevent, and enable parties to avoid by the proper provisions. The bond was only intended to afford security to the obligee, that the decree, which might be tendered by the Court in the in]unction suit, should and would be performed by the complainant, the principal therein It was, evidently, intended that the Chancellor should direct what should be done by the complainant, and ascertain what damages and costs the obligee had sustained, on account of the injunction, and if he would not perform the personal act or duty required of him, or pay the damages and costs awarded, that his securities would make good the damages occasioned by the first, and pay the award of the latter, by incurring an action on the bond. Beyond this, the condition of the bond does not go, in our judgment. We are corroborated in these views, we think, by the provisions of the 21st and 22d sections of same chapter of the Digest, from which the 18th section, above referred to, was extracted: They are as follows "Sec. 21. Upon the dissolution of an injunction, either in whole or in part, where money has been enjoined, the damages thereon shall be assessed by the Court, at not less than six, nor more than ten per eentum on the amount released by the dissolution of the injunction, exclusive of costs ; but in all other eases, the damages shall be assessed by a jury empannulled for that purpose ; if neither party require a jury, the damages may be assessed by the Court," "See. 22, The Court shall enter a decree according to the circumstances of the case, including the damages assessed as aforesaid, and may award execution thereon, or enforce such decree in such other manner as may be proper, according to the rules and practice in eluincery." See Digest, p. 594. It is evident, from these sections in connection with the 18th, that the legislature has so provided as to limit the liability of the sureties upon injunction bonds, to the amount of the damages and costs actually decreed to the defendant in the injunction suit, upon dissolution.
OF THE STATE OF ARKANSAS_ 353 Term, 1857] Blakeney as ad_ vs Ferguson et al. But it is insisted, on the part of the appellant, that the remedy, thus given by the letter of the statute, for determining the damages and costs to which defendants, in injimetion suits, are entitled on dissolution, is only cumulative of the remedy existing on the bond ; and to sustain this position we are cited to Garrett vs. Logan, 19 Ala. H. 344. We have examined that ease very carefully, and considered it patiently, and do not conceive it supports the position he assumes. It is true, that was upon an injunction bond. But the condition of the bond, declared on in that case, was "if the said complainant will well and truly prosecute his said writ of injunction, and pay all costs and damages occasioned, ete "—very different from the condition of the one we are considering. In the one before us, in the first clause of the condition, the word "therein" is used in reference to the injunction suit ; thereby making the breach of either clause of the condition dependent upon the fact, whether damages and costs were awarded "therein," or in the chancery suit, after dissolution of the injunction, "either m whole or in part." No such word, or one equivalent, is to be found in the condition of the bond in Garrett vs. Logan. The fact is, we regard Garrett vs. Logan as going very far to sustain the views already expressed in reference to the case at bar ; for the Court, in commenting on Davis vs. Guley, ( 2 Dev. & Bat., B. 360, cited by counsel say. "That was a bond for the payment of such damages as might be recovered. In this ease, (meaning the one of Garrett vs. Logan') the bond was simply to pay costs and damages occasioned, etc," The Clortrt approved of the decision in Davis vs. Gulley, which was, in effect, that an action would not lie on a bond conditioned as the one in that case was, until after suit brought, and judgment recovered at law to fix the damages occassioned by the vexation suing out the injunction." The 21st and 22d sections of our statute, under the head of injunctions, was intended, we have no doubt, to avoid the necessity of there being more than one suit against the principal in such bonds, which is consistent with the policy of the law in general
354 CASES IN TILE SUPREME COURT Blakeney as ad. vs Ferguson et al. [January From these views, therefore, we are forced to hold, that the appellant cannot recover upon the injunction bond declared on, except the amount of costs which accrued in the chancery suit in which the bond origmated. We are warranted in this cirticlusiiin from another principle comiceted with the question at band, and arising upon this part of the recoid, namely; that it is not competent to rtcover before one tribimal,,upon some of the covenants of the bond, awl then sue, upon other covenants, before another tribunal, in a case where the party was alike liable before either tribimal, the same time, for on the covenants in the entire mstrument The splitting up of entire liabilities into ilifferent suits will not be permitted. It is violative of plain principles. Sec Black vs, Cainthers, Hrris & Co, Humph. R. 92-3. If the appellont bad &sited to pioceed for damages as \ \ L'll t-Un costs in the injunction suit, we ThElk there can be Et) doubt, 1111 T. that the measure of his damages would have been the value of the rents and protits of the land and premises enjoined, from the date of the injunction to the tithe of its Ilissolution, the eosts in the Supreme Court, and. may he, the counsel fees in Loth Courts, See Ed waids & Edwards Vs, Bodine et al_ IA Paige 223. Notwithstanding : the first specific breach assianed is somewhat obnoxious to duplicity, Much was only gTound of special demurrer ot the common law, and, consequently, not avoidable at all hy demurrer, under our practice, the Court below should have overruled the demurrer as applicable to it, tor the reason tfiat one of the breaches assigned therein is the non-payment of the costs avei ie d tO have been awarded to the appellant en the dissolution of the in-Pinction iccited. There is no objection possible to the third specific breach; that being lite the first, as we hove qualified it, that is to say, averring an award of a decree in the chancery Court for oasts, and a formal negation of the payment by the app : flees. The demurruir to this assignment should also have been overruled, In reference to the second specific breach, we hcild, in .6
OF TIIE STATE OF All1ZANS1S Term, 1857] the foregoing. that the demurrer, as applicable to that, wits pro-Tlerly sustained: For the errerrs afoiesaid, the -Pidgin nt of the Pubski Circuit Court is reversed, and the cause remanded to iie proceeded in as herein before directed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.