Davis v. Gully

• Decision Date: 30 June 1837
• Citation: 19 N.C. 360
• Court: North Carolina Supreme Court
• Parties: JONES DAVIS v. JOHN G. GULLY, et al.

19 N.C. 360

JONES DAVIS

v.JOHN G. GULLY, et al.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1837.

A bond with a condition to be void upon the payment of such damages as might be recovered of the principal obligor, for wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall be able to satisfy any judgment obtained against him, in an action on the case, for wrongfully filing the bill; and no action can be brought on such bond until the obligee has obtained such a judgment, and failed to procure satisfaction.

This was an action of debt, upon a bond given by the defendants, upon suing a writ to sequester sundry negroes in the hands of the present plaintiff. Plea, non infregit conventionem.

On the trial, before Bailey, J., at Johnston, on the last Circuit, the case appeared to be as follows: A bill in equity was instituted by John G. Gully and others, against the

present plaintiff, Jones Davis, in the Court of Equity for the county of Johnston, and a fiat made thereupon for issuing writs of ne exeat and sequestration, upon the complainant's entering into bond with sufficient security in the sum of five thousand dollars, with condition to be void, on the payment of such damages as might be recovered by the defendant, for wrongfully suing forth the said writs. In consequence of this fiat, the present defendants executed their obligation to the plaintiff, in the penal sum of five thousand dollars, upon condition to be void "upon payment of all such costs and damages that the said Jones Davis" (the present plaintiff) "shall recover against John G. Gully and the other complainants, for wrongfully bringing a suit against him in the Court of Equity for Johnston County." The writ of sequestration issued. Upon the coming in of Davis's answer, the complainants had leave to amend their bill, and it was ordered that the writ of sequestration be dissolved, on defendant's giving special bail, in the sum of two thousand dollars. Thereupon, at the same term, an amended bill was filed, making some alteration in the parties complainants; and by consent of the parties on both sides, an interlocutory order was made, whereby the matter in controversy wasreferred to the award of two professional gentlemen, with an agreement, that if they should decide in favour of the complainants, they should award to them in lieu of the negroes claimed by their bill, the money which was due from one John P. Yeargan, on account of the purchase of the said negroes from the then defendant, Jones Davis, and the sequestration was set aside. At the succeeding term, no award having been returned, the order of reference was discharged; and it was ordered by the Court, that the defendant should file with the clerk and master, the bond of Yeargan; that the same should be collected by the said clerk and master, as soon as it should become due, and the proceeds kept subject to the disposition of the Court. When the suit in equity was brought to a final hearing, the bill of the complainants was dismissed; and it was ordered, that the defendant have leave to put in suit the bond given by the complainants for the recovery of such damages as the defendant may have sustained by the wrongful suing out of the writ of ne exeat, or order of sequestration prayed and obtained by the

complainants. Thereupon Jones Davis instituted this action, and on the trial offered, as evidence of a breach of the condition of the bond, testimony tending to show that he had sustained damage, by reason that Yeargan's bond had not been collected by the clerk and master as it might have been, had its collection been pressed with diligence; and that the damage so sustained had not...