Wallis v. Dilley

Le Grand, O. J.,

delivered the opinion of this court.

This suit was instituted to recover the sum of $1500, the amount which the appellants had bound themselves in a certain injunction bond to pay to the appellees, on failure of certain complainants to prosecute their injunction with effect.

The appellees, at the trial, gave in evidence an injunction bond and the records of two causes commenced in Baltimore county court, sitting in equity, in one of which Powles and others were complainants, and the Merchants Fire Insurance Company, and Benjamin R. Edwards and Barney Dilley, were defendants; and the other, in which Powles and others were complainants, and the Merchants Fire Insurance Company, Benjamin R. Edwards, Barney Dilley and Joseph Dilley, were defendants. Both of these cases were removed to the court of chancery and finally determined in the Court of Appeals, the one on February 13th, 1846, the other January 1851. The circumstances under which the injunction here involved was granted and dissolved, will be found in the report of the latter case, in 2 Md. Ch. Dec., 119, and 9 Gill, 222 .

The appellees also offered a transcript of a bill of inter-pleader, filed by the Merchants Fire insurance Company vs. Powles, Hyde and others, in chancery, October 1850; and also proved, that Joseph Dilley did not receive the $3000 mentioned in the equity proceedings, and the subject of the injunction, .until February 1st, 1851, when he received that sum out of chancery, in the interpleader proceedings aforesaid; that said Joseph Dilley paid costs of defendants in Baltimore county court, court of chancery and Court of Appeals, in the cause instituted in February 1846, and also $750 counsel fees.

The appellants then proved by John J. Lloyd, that he was counsel for the Merchants Fire Insurance Company at the *247 time of the institution of these suits; that there were several negotiations between Mr. Frick, the counsel for Joseph Dilley, and witness, for the purpose of relieving the company from its position as stakeholder. Mr. Frick wished the company to pay over to Dilley—witness wished the company to deduct their expenses from the fund, and pay balance to counsel for complainants and defendants, to be invested. The counsel for ihe respective parties could not agree; proposals were made to invest the fund when the litigation was first begun, and more than once afterwards.

The chief difficulty in the negotiation, in September 1849, was $)375 interest, one-half of which the company offered to pay. The company always denied their liability for interest, and claimed to be allowed for expenses and counsel fees out of the fund.

The counsel for Dilley, on four separate occasions, demanded payment from the company, but it it was always refused under the circumstances stated. The refusal to pay, in July 1847, was based on the pendency of the suit, and the fact that Mr,, Glenn, counsel for complainant, had notified the company no& to pay.

The appellees then proved by Mr. Frick, (subject to exception,) that no demand was made on the company for payment until the affirmance of the chancellor’s order dismissing the first injunction, in February 1846: Witness then called and demanded payment of the policy, and while he was then in-their office the company were served with the second injunction: Before this time there was no negotiation in reference' to the payment or investment of the fund. During the four-years succeeding. the granting'of the second injunction, there were several conversations between Mr. Lloyd and witness in-regard to the matter. The company always, (except in their last proposition;) claimed-to invest the fund without interest,- and after deducting counsel fees and expenses. In 1850, Mr. Lloyd offered to invest the principal, and iflS7.50‘ inlerest,. still deducting costs and counsel fees. No proposition for investment was made prior to the institution of the second injunction proceedings, and none before 1850, except of the' *248 principal, less costs and counsel fees. A formal'demand was made on the Company, in July 1847, Which they refused, on the ground that Mr. Glenn had notified them not to pay. Mr. Dilley received the $3000, February 1st, 1851, from the court of chancery, where it had been deposited by the company, in October 1850.

On this state' of facts the appellees asked and obtained- a-single instruction to the jury. The appellants submitted seveii propositions, all of which were refused.

The first prayer of the appellants is to the effect, that there is no evidence to show the complainants mentioned in the bond given in evidence had failed-' to prosecute with effect the injunction recited in said bond.

The bond recites, that the obligors “ have obtained from Baltimore comity court, sitting in chancery, a writ of injunction, ” &c. The order of the judge directing the issue of the writ is in-these words:- u Mr. Bradford will issue injunction as-prayed for in this bill, on the complainants, or some person or persons for them, giving- bond-, with security to be approved by you, in a penalty of fifteen hundred dollars;- said bond to be with the usual condition.”

The theory of the prayer is,- that inasmuch as the order directing, the issue of the injunction requires it to be issued on the filing of the bond, and the bond recites that the obligors ‘‘/¿awe” obtained the injunction, the bond doesmot refer to the particular injunction'which was not prosecuted with effect, but must be taken as referring to some other writ. We think the Court below did right in rejecting, this prayer. The record-shows that the bill was filed, the bond given, and the injunction issued on the' same day, the 14th February 1S46, and we therefore regard these acts as simultaneous. It would be a mere burlesque of justice to intend the bond sued on had reference to .any other writ of- injunction than the one which the appellants failed to prosecute with effect.- And although there has been considerable strictness in the interpretation placed upon injunction bonds, yet we see nothing in the decisions of our State to warrant the proposition contained in the prayer.

In the case of Morgan vs. Blackiston, 5 Har. & Johns., 61, *249 it was but decided, that an injunction bond is only binding with reference to the judgment recited, and is security for the payment of no other judgment. In that case, the judgment recited in the bond was stated to have been rendered at September term 1801. The case was heard on a case stated, by which it appeared the parties had agreed that a judgment had been rendered at April term 1801. It was clear, on this state of facts, that the bond Was not given in reference to the judgment set out in the statement of facts agreed Upon by the parties. Had the plaintiffs in that case relied upon the bond and not on the statement of facts, the defendants would have been precluded from denying the existence of the judgment recited in it. Hardey, et al., vs. Coe, 5 Gill, 189. In Morgan vs. Morgan, 4 Gill & Johns., 401, the Coürt held, that it was no breach of a bond conditioned for the prosecution of a writ of injunction with effect in the court of chancery, that it was not so prosecuted on the equity side of St. Mary’s county court. Neither of these cases are similar to the one now before us. Here, it is apparent, the bond was filed at the time of the issue of the writ, and although the bond, in its reference to the writ, speaks in the preterit tense, we interpret it in the present, regarding the filing of the bond and the issue of the writ as concurrent acts.

We are of the opinion that the second prayer of the appellants ought to have been granted. Whatéver may be the justice of the rule, it seems to be well established, that in all matters arising ex' contractu, the successful party is not entitled to recover the fees which he may have paid to his counsel. Day vs. Woodworth, et al., 13 Howard, 363 .

We do not concur in the ruling of the court in regard to the third prayer of the appellants. It confines the recovery of the plaintiff, so far as costs and expenses ave concerned, to those which accrued between the time of the issuing of the injunction and the affirmance by the Court of Appeals of the order of the chancellor dissolving it. The prayer submits no quesr tion in regard to interest on the sum tied up in the hands of the insurance company, and we think in limiting the recovery, so far as costs and expenses are involved, to the time when the *250 injunction was dissolved, was allowing all in these respects that was covered by the bond. The obligors only bound themselves to “ prosecute with effect” the writ of injunction, or be responsible for the injury which would result from a failure to do so. When the injunction was dissolved, all injury for which they made themselves liable had then accrued. The prayer does not, as was insisted, confine the recovery of the plaintiffs to the costs and expenses stated in it, but merely the recovery, in that regard, to them.

The fourth prayer of defendants was properly refused. Apart from all other considerations, the prayer is fully answered by the decision of this court, in the case of the State, use of the Justices of the Levy Court, vs. Dorsey, et al., 3 Gill & Johnson, 75. In the exercise of a quasi equitable jurisdiction, courts of common law, on motion of a cestui que trust, or of a defendant, will order the proper use to be entered in the action. Green vs. Johnson, 3 Gill & Johnson, 393.

The fifth and sixth prayers present substantially the same inquiry; the first denies the right of the plaintiffs to recover for any separate toss which may have been sustained by any one of them, and the other asserts there is no proof of a joint loss. It must be observed, that the cause of action here is joint, and that if all the plaintiffs had not united, the declaration would have been subject to demurrer. The obligation is for the payment of one sum to three parties, and they were properly joined as plaintiffs. Had they not been, the defendants might even have availed themselves of the non-joinder upon proof at the trial. Armstrong vs. Robinson, 5 Gill & Johnson, 413. We concur with the court below in their rejection of these prayers. We are also of the same opinion as the Superior Court in regard to the seventh prayer. It is not sustained by the proof. The insurance company did not agree to deposite the amount due under the policy, but only the sum remaining after deducting the costs and expensjss to which it had been subjected. The plaintiffs were not bound to accede to any such proposition.

We concur in the general correctness of the prayer offered on behalf of the plaintiffs. It is, however, defective in one *251 particular, to wit, it does not define up to what time the interest on the $3000 was to be calculated. We think the time up to which interest ought to have been computed, was the day on which the amount was paid into court. This not being specified in the prayer, it, was calculated to mislead the jury, and for that reason ought not to have been granted. W e are of opinion, however, that in this case interest was recoverable as matter of right. Newson's Adm’r vs. Douglass, 7 Harr. & Johns., 417.

Judgment reversed and. procedendo awarded.