Opinion
04-08-1812
Woodson v. Johns
Samuel Taylor, for the plaintiff in error. No counsel for the defendant.
This was an action of debt in the late District Court holden at Prince Edward Court-house, in the name of John Johns and John Benning, (who sued for the benefit of John Benning,) against William Meridith and Benjamin Morris, on a bond, dated the 2d day of July, 1791, in the penalty of one thousand pounds, conditioned for the prosecution of an injunction in the High Court of Chancery, to stay proceedings on a judgment obtained by John Johns against Peter May, and Charles May, John Benning, and William Meridith, his securities, and on a judgment in favour of John Benning against said William Meridith. The breach of the condition set forth in the declaration was " that the injunction aforesaid was dissolved, and the said William Meridith did not pay unto the said John Benning five hundred pounds current money, & c. (stating the amount of the debt and costs of the judgment,) and the cost that was awarded the said John Benning upon the dissolution of the said injunction, according to the condition of the said writing obligatory above set forth." The suit abated as to William Meridith and Benjamin Morris, they being returned by the Sheriff " no inhabitants," and also as to the plaintiff, John Benning, by his death.
The defendant John Woodson pleaded conditions performed.
On the trial of the cause the plaintiff offered as evidence, on which to recover ten per cent. damages, (and the costs expended in the court of appeals,) during the continuance of an appeal from the High Court of Chancery to that Court, a copy of the record, showing that after the dissolution of the injunction, the bill was dismissed with costs: from which decree in September, 1802, the complainant prayed an appeal, " which was allowed him without security, none being required by the defendant's counsel, and that on the 17th of November, 1807, that decree was affirmed by the Court of Appeals; [++] to the introduction of which evidence the counsel of the defendant objected, " upon the ground that the defendant, against whom the suit now stands, is not liable for the costs and damages of the Court of Appeals; " which objection was overruled by the Court, and the said record suffered to go to the jury as evidence. To which opinion a bill of exceptions was filed.
A verdict was thereupon found, and judgment rendered, for the debt in the declaration mentioned, to be discharged by 6821. 16s. 9d. damages, with five per cent. interest on 3791. 16s. 3d. part thereof from the 2d day of July, 1791, to the 29th day of September, 1802, and with like interest on the like sum from the 17th day of November, 1807, till paid; ten per cent. damages, on the debt and costs originally due, from the 29th of September, 1802 to the 17th of November, 1807, being included in the said sum of 6821. 16s. 9d. as appeared by a statement delivered to the jury on the trial of the cause; which statement was annexed to the transcript of the record as an exhibit to this judgment and a writ of supersedeas was awarded by a judge of this Court.
Judgment reversed.
Samuel Taylor, for the plaintiff in error.
No counsel for the defendant.
The president pronounced the Court's opinion.
OPINION
Thursday, April 9th. The president pronounced the Court's opinion, " that the said judgment is erroneous; 1st. Because the security in a bond for the prosecution of an injunction, is not liable for the costs and damages which may accrue on an appeal to a Superior Court; 2dly. Because the defendant, neither in his declaration, nor in his assignment of breaches of the condition of the bond, demanded such costs and damages; and, 3dly. Because no such damages on the affirmance of a decree in Chancery, were allowed at law, at the time of executing the said bond." [§]
Judgment reversed, and new trial directed, " on which trial the jury is to be instructed according to this opinion."
[++]See 1 Hen. & M. 585-601.
[§] See Rev. Code, vol. 2.