Franklin County NcArchives Court.....Jones, Vs. Hill 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:24 pm

Source: North Carolina Reports
Written: 1811-18

January Term 1812.


EDWARD JONES v. MARTHA HILL. 

From Franklin.

The security to a bond for an injunction is liable, whether the injunction be 
dissolved on the merits, or in consequence of the death of complainant, or of 
his negligence in suing out process in due time. For the act of 1800, ch. 9, 
requires complainants in equity, who obtain injunctions, to enter into bond 
with security conditioned for the payment of the sum complained of upon the 
dissolution of the injunction. The word dissolution is used in a general 
sense, and includes every case where, on account of anything whatever, the 
injunction is dissolved.

The plaintiff having recovered a judgment against Henry Hill, as special bail 
of one Perry, Hill obtained an injunction to stay proceedings at law, and gave 
bond with Martha Hill his security. The bond was in the form in which 
injunction bonds are usually taken. Jones, the plaintiff at law, filed his 
answer, but before the hearing of the case upon bill and answer; Henry Hill, 
the complainant, died, and the suit abated. Jones then brought this suit on 
the injunction bond, against Martha Hill, the security; and it was submitted 
to the Court, Whether the suit could be maintained. If it could, judgment to 
be entered for the plaintiff; if it could not, judgment of nonsuit to be 
entered.

Taylor, C. J. Laws 1800, ch. 9, requires complainants in equity, who obtain 
injunctions, to enter into bond with security conditioned for the payment of 
the sum complained of, upon the dissolution of the injunction. The bond given 
in this case is within the very terms of the act, and the question is, whether 
the security is liable, the injunction not having been dissolved on the 
merits, but in consequence of the death of the complainant. As the act uses 
the term dissolution in a general sense, it would not be consistent with the 
ordinary rules of construction to restrain the meaning to a dissolution on the 
merits, unless it could be shown that such only were within the meaning of the 
Legislature, or that no others were within the mischiefs intended to be 
guarded against. An abatement arising from the negligence of the complainant 
in not suing copies and process in due time would seem to be clearly within 
the meaning of the law, when the injunction is dissolved in consequence of 
such negligence; and this shows, at least, that the security undertakes 
something more than that the complainant shall substantiate his equity. To 
proceed a step further: the interposition of the security prevents the 
plaintiff from enforcing his judgment at law, which he might have done, 
notwithstanding the death of the defendant; by the security's means he has 
lost the power of recovering the debt from the defendant or his estate. Ought 
not the security, then, to indemnify him? Where an appeal is taken from the 
County to the Superior Court, the condition of the bond is not more obligatory 
than in the present case, yet the abatement of the suit by the death of the 
appellant and defect of revival could scarcely be thought a reason for 
discharging the security from the bond. If the equity of the bill could have 
been supported, it might have been done by obtaining administration on the 
complainant's effects, and prosecuting the suit; and no one was so much 
concerned to do this as the security. She has not thought proper to take this 
step. At all events, the creditor ought not to lose his debt because it has 
not been done. Judgment for the plaintiff.

Cited: Collier v. Bank, 21 N. C., 329.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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