Richardson v. Allen

• Decision Date: 24 February 1885
• Citation: 74 Ga. 719
• Parties: RICHARDSON et al., executors, for use, v. ALLEN.
• Court: Georgia Supreme Court

74 Ga. 719

RICHARDSON et al., executors, for use, v. ALLEN.

Supreme Court of Georgia.

February 24, 1885

February Term, 1885.

Where an injunction was obtained against one who was the agent of a third party, enjoining him from interfering with certain land, and the complainant was required to give a bond to pay all damages that might accrue to the defendant by reason of continuing the injunction, after the bill had been dismissed by the complainant, suit could be brought on the bond, in the name of the payee therein for the use of his principal, for any damage which might have accrued to the latter by reason of the continuance of the injunction.

( a. ) While the contract of suretyship is one of strict law, yet the surety obligates himself for the performance of his principal's undertaking, so long as the principal remains bound therefor, and so long as the surety is not released by some act of the creditor.

( b. ) The person for whose use the bond was taken might proceed in equity for the recovery of damages in his own name, and, with proper averments, he may proceed at law in the name of the payee for his use

( c. ) The right of action on the injunction bond accrued when the complainant dismissed his bill, whether he did so with or without the leave of the court.

( d. ) Damages for the rents, issues and profits of the land, together with the waste committed on it while the owner or his agent was kept out of possession by the continuance of the injunction, may be recovered under the bond, and also such reasonable counsel fees as he was compelled to expend in order to rid himself of such injunction.

Injunction. Bonds. Principal and Agent. Principal and Surety. Equity. Actions. Damages. Before Judge FORT. Lee Superior Court. November Term, 1884.

Reported in the decision.

B. P HOLLIS; G. W. WARWICK, for plaintiffs in error.

HAWKINS & HAWKINS, for defendant.

HALL Justice.

This was a suit upon an injunction bond, at the instance of the executors of the payee in the bond, who prosecuted it for the use and benefit of a third person. The penalty of the bond was $1,000, and had thereunder written a condition to the effect that the complainant in the bill had procured an injunction returnable to the March term, 1876, of the superior court of Lee county, restraining the defendant from doing certain acts therein described, in relation to a plantation in said county, known as the McLeod place; that a motion had been made to dissolve the injunction, and upon the hearing of the motion, the injunction had been continued upon condition that complainant gave bond to pay all damages that might come to defendant by reason of continuing the injunction; therefore, if the complainant paid such damages then the bond was to be void. The principal breaches of the condition alleged were that the complainant wasted the land for three years and more, kept the defendant out of possession, deprived him of the rents, issues and profits and caused him to incur heavy expenses, as counsel fees etc., in defending the injunction, and at the end of that time voluntarily abandoned and dismissed the suit, though he still retained possession of the premises for several years; that the retention of the possession was fraudulent, and the injunction was procured for the fraudulent purpose of ousting the defendant and keeping him out of a possession which he held as the agent of the true owner, who was the usee in this action. To this suit the defendant, who, as one of the...