Stevenson v. Miller
| Decision Date | 13 December 1822 |
| Parties | Stevenson v. Miller. |
| Court | Kentucky Court of Appeals |
1. If a complainant in chancery obtains a void injunction. and by so doing subjects those against whom it is obtained, to vexation and expence, the bond which he executed in order to obtain it, is not void in consequence of the injunction's being void. 2.
2. The defendant in a suit on an injunction bond, where the injunction has been awarded by justices of the peace, on his application, may be estopped to deny the authority of the justices, at the time, to award the injunction. 3.
3. But to make the estoppel operate, it is necessary for the plaintiff to rely on it by demurrer to the plea denying the authority of the justices, or to reply the order awarding the injunction. 3.
4. The powers of the justices appointed under the act of 1818, to award injunctions, & c., expired at the next succeeding court of claims. 3.
5. Yet an injunction awarded by them after the expiration of their authority, was not void, but was an injunction de facto. 4.
6. Where an injunction is awarded to enjoin a judgment at law, a direction that the bond shall be conditioned according to law, is sufficient; but in all other cases the chancellor ought to direct the condition of the bond, particularly. 5.
James Miller, one of the appellees, obtained a judgment for six hundred dollars and upwards, against Samuel Stevenson, one of the appellants, and issued execution of fieri facias, which was returned " No property found." He then filed a bill against Stevenson, alleging that a negro woman slave and her children, had been sold as the property of Stevenson, under an execution against him in favor of Reuben Newton, for $285 73 cents more than Newton's debt; that Richard A. Taylor became the purchaser, and gave bond and security for the said overplus beyond Newton's debt, which was still due to Stevenson that John B. F. M'Gee and John Perceful had executed to said Stevenson and Charles Helm, his partner, their three several obligations for the payment, in the whole, of $4,994 52, the greater part of which was still due--the one-half of which, belonged, of right, to said Stevenson, as the partner of M'Gee; but that said Helm, being in possession of said notes as partner, with the fraudulent intention of defrauding the creditors of said Stevenson, had assigned one of said notes to Achilles Sneed, to the amount of $1,664 84, and that Sneed had refused to accept the assignment, as he was informed: That said Helm had also assigned another of said notes to Askew and Paxon, merchants of Philadelphia, for the same fraudulent purpose, there being nothing due to them; and that they had commenced and were prosecuting suit thereon, to judgment. He then prayed that said Stevenson, the said Taylor and John B. F. M'Gee, his security in the bond for the payment of the residue of the price of the aforesaid slave and her children, and the said Perceful and M'Gee, who had executed the aforesaid notes, and Sneed, and Askew and Paxon, to whom two of them were assigned, might be made defendants; and that an injunction might be granted, " enjoining the said Taylor and M'Gee from paying unto the defendant, Stevenson, the residue of the price of said slave and her children; that M'Gee and Perceful be enjoined from paying to the aforesaid Achilles Sneed, as well as the said Askew and Paxon be enjoined from proceeding and collecting the sum due to them on their note, or two notes on which they had obtained judgment; " and that several debts, or so much of them as belonged to said Stevenson, and as would be sufficient to satisfy his demand, might be appropriated in discharge thereof, by a decree of the court.
His bill was sworn to, and an order obtained thereon, dated on the 19th of November, 1818, signed by Christopher Miller George Helm and Samuel Martin, who subscribe themselves " as justices of the peace, for the county, duly appointed by the county court of said county to award injunctions, & c.," under the act of assembly in such cases provided, directing the clerk of the circuit court of the same county, to issue an injunction thereon against the defendants, " agreeably to the prayer of the bill, on the complainant's entering into bond, in the clerk's office of said court, with Jacob Strigler and William Purcell as his securities, in the penalty of thirteen hundred dollars, conditioned as the law directs."
On filing this bill, the complainant therein and his securities, executed bond in the clerk's office in the penalty directed, reciting the circumstances, and conditioned that Miller and his securities, or either of them, " should satisfy and pay all sums of money and costs, which were then due to said Stevenson, Sneed, M'Gee, Taylor, Perceful, Askew and Paxon, and C. Helm; and also, all costs and damages that should be awarded against the said James Miller, in case the injunction aforesaid should be dissolved."
The injunction issued as granted, and at a subsequent term of the circuit court, before any answer was filed, on the appearance of the parties, it was decreed and ordered by the court, " that the complainant's bill be dismissed, and the injunction discharged, and that the defendants recover against the complainant, their costs by them about their defense therein expended."
Stevenson, Sneed, John B. F. M'Gee, Taylor, Perceful, and Askew, and Paxon, and Charles Helm, obligees in the injunction bond, then brought this action of covenant on the injunction bond; and after reciting the bond, and averring the dissolution of the injunction, as before detailed, assigned for breach, that the obligors failed to pay the amount of the judgments of Askew and Paxon, in the circuit court, against M'Gee and Perceful, with interest and costs; also the costs and damages awarded the plaintiffs on the discharge of the injunction.
After oyer was craved and granted, both of the injunction bond and the proceedings of the chancery suit, sundry pleas were filed, all of which were withdrawn and disposed of, except the fifth, which alleges " that at the April term, 1818, of the county court of Hardin, the said court appointed the said George Helm, Christopher Miller and Samuel Martin, justices of the peace for said county, to grant injunctions, & c. of a copy of which order profert is made; and that at the next October following, the said county court laid their levy, and that court was their court of claims; that the said court then failed to re-appoint the said justices to the same office; and that after the failure and refusal of the county court to re-appoint the said justices, and after their powers to grant injunctions ceased, they granted and awarded the injunction referred to in this suit; and that the circuit court thereafter discharged the said injunction, because the said justices had no power or jurisdiction to grant such order and injunction, and because the clerk had improvidently endorsed said injunction upon the subpoena, when none, in truth and fact, was granted."
To this the plaintiff below replied, " that at the April term, 1818, of the said county court, said court did appoint said justices, who acted as such; and that at the October term following, that court made no order on the subject; and that at the date of the granting of the injunction aforesaid the defendant, Miller, produced and made oath to his bill, and moved the said justices to grant him the injunction, upon the allegations therein made; which motion they granted at his instance, according to the order written upon said bill; and that the said Miller produced said bill to the clerk, and order thereon, and upon complying with the condition of said order, by giving of...
To continue reading
Request your trial