Banks v. State, to Use of Ranstead

• Decision Date: 27 March 1884
• Parties: ANDREW BANKS v. STATE OF MARYLAND, use of CHARLES RANSTEAD.
• Court: Maryland Court of Appeals

62 Md. 88

ANDREW BANKS v. STATE OF MARYLAND, use of CHARLES RANSTEAD.

Court of Appeals of Maryland

March 27, 1884

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

First and Second Exceptions.--Stated in the opinion of the Court.

Third Exception.--At the trial the plaintiff offered the following prayer:

That if the jury find from the evidence, that Daniel B. Banks mentioned in the bond offered in evidence, did not prosecute his writ of injunction therein mentioned, to a successful termination, then they may find for the plaintiff in such damages, if any, as shall appear from the evidence that he has actually and necessarily or directly sustained by reason of the granting and serving of the said writ of injunction.

And the defendant offered the four following prayers:

1. That the plaintiff is not entitled to recover any damages for the loss of, or for injury to the piles spoken of by the witnesses, Ranstead and Phillips, which they shall find from the evidence, could have been obviated or prevented by the use of reasonable care and precautions on the part of the plaintiff.

2. That if the jury shall find from the evidence, that after the issuing of the injunction, the engineer, fireman and other employés on the dredging machine owned and operated by the plaintiff, remained idle for the space of six weeks, or thereabouts, the plaintiff is not entitled to recover, in respect of any wages which he may have paid to them for any portion of said time, during which, by the exercise of reasonable care and diligence, he could have found occupation for them, in operations upon other portions of his property.

3. That after the issuing, and service of the injunction upon the plaintiff, it was his duty to use all reasonable care and precautions, and to make all reasonable efforts to diminish and prevent loss and damage to himself and his property, by reason of such injunction; and if the jury shall find from the evidence, that upon the issuing of such injunction, and for a period of six weeks or thereabouts, thereafter, he had no employment for engineers, firemen or other employés on the dredging machine previously used and operated by him, it was his duty to discharge them, and that he is not entitled to recover any sums which he may have paid them during said period of six weeks, or thereabouts.

4. That if the jury shall find, that by reason of the injunction, the plaintiff was required to suspend and discontinue, and did suspend and discontinue his operations, as described by the witnesses, Ranstead and Phillips, then it was his duty to discharge his hands and employés, and if they shall further find, that after the service of the injunction upon him, he did not discharge his said hands, but retained them, or any of them, in his employment, he is not entitled to recover for any sums, which he may have paid them during the pendency of said injunction.

The Court (STEWART, J.,) granted the plaintiff's prayer, and the first, second, and third prayers of the defendant, and refused the defendant's fourth prayer. The defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before ALVEY, C.J., YELLOTT, STONE, MILLER ROBINSON, and BRYAN, J.

John P. Poe, for the appellant.

J. Alexander Preston, and Wm. M. Merrick, for the appellee.

BRYAN J., delivered the opinion of the Court.

Daniel B. Banks obtained an injunction against Charles Ranstead, but failed to prosecute the writ with effect. Andrew Banks was the only surety on the injunction bond, and is also the executor of Daniel, who is dead. A suit was brought on the bond against the surety, and several questions arose at the trial in the Court below.

It is alleged in pleading that after the death of Daniel B. Banks and the grant of letters testamentary the plaintiff exhibited to the executor his claim on the injunction bond; and that the executor refused to pay it; and that after several suits on the bond had been brought by the plaintiff, and dismissed, one was brought against the executor in February, 1879, several years after he had refused to pay the claim; and that to said suit the executor has pleaded that the same had not been instituted within nine months after the refusal to pay. The validity of this objection is assailed by demurrer. It was necessary to bring a separate suit against the surety after the death of the principal. It would have been error to join, as defendants in one suit, the surety and the executor of the deceased principal obligor. If the principal had discharged the obligation of the bond, or if he had been released by the obligee, of course there could have been no action against the surety. But as the obligee was not...