HUNT V. BURTON. VoL. 18 Appeal from the Independence Circuit Court. HON. BEAUFORT H. NEELY, Circuit Judge. Watkins & Gallagher, for the appellants. Fowler & Stillwell, for the appellee. ENGLISH, C. J. This was an action of debt upon an injunction bond, brought by Patrick P. Burton, administrator of Phillip P. Burton, deceased, against Henry W. Hunt and Allen D. Ramsey, securities in the bond, in the Independence circuit court. The declaration describes the bond sued on as having been executed by Edwin T. Burr, as principal, and the defendants as securities, on the 6th of August, 1854, in the penal sum of $5,000, payable to the plaintiff as such administrator, etc. Conditioned, that whereas the said Burr had that day HUNT Er AL.
presented his bill of complaint against V.
said Burton as administrator, etc., aforesaid, to the judge of the circuit BURTON AS AD. court of Independence county, exer-In an action upon an injunction bond, given upon cising chancery jurisdiction, praying an injunction to stay proceedings upon a judgment at law, the recital in the declaration of the judg-among other things, a writ of injunc-ment and executions issued thereon, being induce-tion to be directed to said Burton as ment merely, and a substantial description so as to such administrator, and enjoin him identify them being sufficient (Adams et at. v. The from further proceedings upon two State, uselVallace, 14 Ark. 20), a variance between the recital in the declaration and the execution, as to judgments recovered by him, at the the amount of costs recovered, is immaterial. March term, 1854, of said court, against It ts no defense, in mitigation of damages or said Burr; and also commanding him otherwise, in an action against the securities in an to refrain from any further proceed-injunction bond, that the principal is solvent and able to pay his own debt.. ings upon the executions issued upon The measure of damages recoverable upon an in-said judgments, and to release the levy junction bond, under the statute (sec. 18, ch. 86, D ig.) upon the property of said Burr by vir-is the amount of the judgment enjoined, and the tue of said executions; and also to re-damages assessed upon the dissolution of the injunction and the costs; whether the decree be for the frain from selling any of the property 1891*amonnt of the judgment enjoined and dam-levied on. And whereas, on the 16th ages and costs, or for the damages and costs only, of August, 1854, it was ordered by the-and the defendant be remitted to his judgment at said judge that said writ of injunction law. If the defendants permit judgMent to go against as prayed for in said bill *should [*190 them by default, it is an admission of the right of issue pursuant to the prayer thereof, action as disclosed by the declaration. upon the said Burr entering into bond, Quere. Are the securities in an injunction bond with said Hunt and Ramsey as his se-liable to suit upon the bond upon the dissolution of the injunction; and before a final decree in the curities, in the penal sum of 85,000, to cause ? the said Burton, administrator, etc.,
JULY TERM, 1856. HUNT v. BURTON. conditioned according to law—Then, day, the injunction was issued, after therefore, "if the said Edwin T. Burr the execution of the bond, in ac-should abide the decision that might cordance with the prayer of the be made therein, and should pay all bill, etc., by virtue of which sums of money and costs that might be Burton was restrained from execu-adjudged against him, if the injunction 5 ting the said judgments, and [191 should be dissolved, either in whole or Lhe levies were released by the sheriff, in part, then the above obligation was etc. to be void and of no effect either in That afterwards such proceedings law or equity, otherwise to remain in were had upon said bill and injunction, full force and virtue." in said circuit court in chancery, that The declaration t hen proceeds to as-at the September term, 1854 (on the sign a special breach of the condition 25th Sept.), by the order and decree of of the bond, in substance as follows : the court, the injunction was dissolved, That on the 20th of March, 1854, Bur-and Burton again fully authorized to ton, as sucli administrator, recovered a proceed upon, and have the benefit of judgment against Burr, in the Inde-his said judgments at law ; and the pendence circuit court, for residue of court then and therein, by said order debt $1,640.11, also for $157.30 damages, and decree, found that the money so and the costs of suit, which, at the released by the dissolution of the in-time of the execution of the bond sued junction, exclusive of costs, then on, amounted to 811.30. amounted to the aggregate sum of That, on the same day, Burton re-$2,635.71, and on said judgments, so en-covered against Burr, in the same joined, assessed the damages sustained court, in another suit, a judgment for by Burton, as such administrator, at $750, residue of debt, $9.35 damages, six per cent, on the amount so found and for costs, which amounted, at the due, and so released, amounting to the time the bond sued OD was executed, sum of $158.14 ; and then and thereby to $7.20. decreed the said Burr to pay said sum Both of which judgments remained of $158.14, the damages so assessed to in full force, etc., and were the same the said Burton, and that he should recited in the condition of the bond have execution thereof. sued on. And the plaintiff avers that in and That, on the 3d of May, 1854, execu-by said decree, so rendered, and so dis-tions were issued on the judgments, solving said injunction, the said corresponding therewith, and correctly amount of said judgments at law so reciting the same, on each of which the then found to be due to the said Bur-proper amount of debt, damages and ton as such administrator, from the costs was endorsed, returnable to the said Burr, to-wit : the sum of $2,- September term following, etc.; and 635.71: so released from the said injunc-which, on the day they were issued, tion ; and also said sum of $158.14, the were delivered to the sheriff of Inde-damages so assessed and decreed ; and pendence county, and were levied hy also the said costs of said judgments him on the property of Burr. That and executions at law, and of the said these were the same executions recited levies thereon, amounting, at the time in the bond sued on. of the making of the said bond sued That the bill mentioned in the con-on to the aggregate sum of $18.50, were dition of the bond, was filed on the adjudged against the said Burr, and in chancery side of said court, on the16th favor of said Burton as such adminis-of August, 1854, and on the same trator ; and which said sums of money,
HUNT V. BURTON. VOL. 18 so adjudged against said Burr, to and tion of them, so as to identify them, in favor of said Burton as such ad-was sufficient. Adams et al. v. The ministrator, the said defendants Henry State, 14 Ark. 20. W. Hunt and Allen D. Ramsey, as 2. The defendants offered to prove well as the said Burr, then and there by two witnesses in mitigation of dam-became liable and bound to pay to the ages, that Burr, the principal in the said Burton, etc., by virtue of the bond bond sued on, was abundantly able to sued on, and the condition thereof. pay his own debts and liabilities, and Then follow averments of the non-pay-that he had sufficient unincumbered ment of the money, etc., and the gen-property, out of which to make the eral breach. amount of the bond, ever since its date, The defendants permitted judgment and down to the time of the inquest; to be rendered against them by:default, but, upon the objection of the plaintiff; and a jury was called to assess the the court excluded such testimony. plaintiff's damages, etc. Pending the There was no error in this. The sol-inquest the defendants excepted to vency of Burr had no relevancy to the 192'9 *several decisions of the court, amount of damages to be assessed by took a bill of exceptions, and appealed the jury. The liability of the obligors from the final judgment. in the bond was joint and several ; and 1st. The court permitted the plaint-the obligee had the right to pursue iff to read to the jury two executions, his separate remedies against the prin-with the endorsements of the clerk, cipal and securities, though he could and the returns of the sheriff thereon, have but one satisfaction. The remedy against the objection of the defend-against the securities could pro-ants. The ground of objection was, *gress until Burr discharged the ['193 that the executions offered in evidence bond, by paying the sums seeured by varied from, and did not support the it. -declaration. 3. The defendants m wed the court to The only discrepancy between the instruct the jury: "That upon the executions offered in evidence, and the records and papers which had been averments of the declaration, seems read before them as testimony, which to be thus: It is alleged in the decla-are the several records and papers men-ration that the costs in one of the judg-tioned in the declaration, and which ment§ enjoined, amounted to $11.30, constitute the testimony on the part of and in the other to $7.20, at the time the plaintiff; they can find for the the injunction bond was made. The plaintiff only the damages actually costs endorsed upon the executions sustained by him, in the suspension of correspond wih these sums, but the fee his executions, and cannot include as of the sheriff' for returning the execu-damages the amount of the judgments tion in each case, is included to make mentioned in the declaration, and read up the amounts ; and the returns were in evidence." Which the court remade after the execution of the bond. fused to give; but instructed the jury: The executions corresponding with "That the measure of damages for the allegations of tile declaration in them to find on the evidence, if they all other respects, were sufficiently believed the evidence, was the amount identified to admit them in evidence. of the judgments and interest thereon, The injunction bond was the founda-according to their effect, and the tion of the action. The judgments and amount of the damages assessed by the court on the dissolution of the injunc-executions were recited by Way of in-tion, and interest thereon, and costs ex-ducement, and a substantial descrip-eept- as paid."
JULY TERM, 1856. Sec. 18, chap. 86, Digest, p. 593, pro-in chancery was finally heard and the vides that: "no injunction shall be is-bill dismissed. sued in any case until the complainant If there is any thing in this objection, execute a bond to the adverse party, it should have been interposed by any with good and sufficient security, in appropriate plea in the court below. such sum as the court, judge, or master The default of the defendants admitted shall deem sufficient to secure the the right of action as disclosed in the amount or matter to be enjoined, and declaration. The objection is based all damages and costs that may be oc-upon matter dehors the record before casioned by such injunction, con-us in this case. ditioned that the complainant will The judgment of the court below is abide the decision which may be made affirmed. therein, and that he will pay all sums Absent, Hon. C. C. Scott. of money and costs that may be adjudged against him if the injunction be Cited: --29,383 -476. dissolved, either in whole or in part." The bond sued on in this case, as described in the declaration, appears to have been taken in accordance with the statute. The amount enjoined was the aggregate sum of the two judgments at law; and this, with the damages assessed upon the dissolution of the injunction, and costs, furnished the measure of damages recoverable upon the bond. This was clearly the intention of the statute. The defendant in a judgment is not permitted to stay its execution by an injunction obtained upon an ex-parte case, made by his bill, without 194*j securing the debt, °and any damages and costs that may be adjudged against him on failure to abstain his bill. 6 Leigh 581. The usual practice in this State, we believe, is for the chancery court to render a decree for the damages assessed on the dissolution of the injunction, and to remit the defendant in the bill to his execution upon the judgment at law, as was done in this case. The court did not err in refusing the instruction asked by the defendants, and in giving that moved by the plaintiff. It is insisted in the argument of the counsel for the appellants that the action wae premature. That no action would lie on the bond until the cause
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.