Gully v. Gully
| Decision Date | 30 June 1820 |
| Citation | 8 N.C. 20 |
| Court | North Carolina Supreme Court |
| Parties | ROBERT GULLY v. J. G. GULLY and WATSON. |
(IN EQUITY.)
1. The act of 1800. c. 9. does not require a bond of any particular form to be given for obtaining an injunction.
2. The condition of a bond will be so construed by rejecting insensible words as to fulfill the intent of the parties.
3. 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 dissolve the injunction and" will be rejected as insensible.
4. It is no objection to such a bond that it is taken for double the 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.
THIS was a case from WAYNE Court of Equity, and appealed to this Court.
The defendants here had obtained a judgment at law against the complainant for the sum of $1,203.20, besides costs of suit. The complainant then exhibited his bill in equity and obtained a judge's fiat for an injunction upon his entering into bond with security according to law. The master took the bondwith security in the sum of $2,406.40, 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 discharged by the payment of the judgment at law and all costs." From which decree the complainant appealed to this Court.
TAYLOR, C. J., after stating the case, proceeded todeliver 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....
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