Banks v. State ex rel. Ranstead

Bryan, J., delivered the opinion of the Court. Daniel B. Banks obtained an injunction against Charles Ranstead, but failed to prosecute the writ with effect. Andrew Banks was the only surety on the injunction bond, and is also the executor of Daniel, who is dead. A suit was brought on the bond against the surety, and several questions arose at the trial in the Court below.

It is alleged in pleading that after the death of Daniel B. Banks, and the grant of letters testamentary the plaintiff exhibited to the executor his claim on the injunction bond; and that the executor refused to pay it; and that after several suits on the bond had been brought by the plaintiff, and dismissed, one was brought against the executor in February, 1819, several years after he had refused to pay the claim; and that to said suit the executor has pleaded that the same had not been instituted within nine months after the refusal to pay. The validity of this objection is assailed by demurrer. It was necessary to bring a separate suit against the surety after the death ⁹² of the principal. It would have been error to join, as defendants in one suit, the surety and the executor of the deceased principal obligor.

If the principal had discharged the obligation of the bond, or if he had been released by the obligee, of course there could have been no action against the surety. But as the obligee was not obliged to resort to the executor of the principal debtor, but was entitled to an independent remedy against the surety, it must be irrelevant to inquire whether there were legal obstacles, in the way of the enforcement of the bond against the principal, assuming that it had not been paid, or had not been released by the obligee. If by reason of the failure to sue within a limited time, the executor of the principal obligor was at liberty to settle the- estate of the deceased without regard to this claim, yet it by no means follows that the bond was discharged. The obligation still remained in full effect, but some other remedy was necessary to enforce it.

We do not consider the objection well taken. Zollickoffer, Ex’r vs. Seth, et al., 44 Md., 359 . At the trial the plaintiff offered in evidence the record of an action of trespass brought by Daniel B. Banks in his life-time against the present plaintiff, and prosecuted after his death by Andrew Banks as his executor. The injunction restrained the plaintiff from entering upon the land mentioned in the trespass suit, and from making certain improvements and erections on it, and the averment of the declaration in this cause was, that he was wholly deprived of the beneficial use and enjoyment of the said land, and of the power to prosecute certain improvements, which he was making, and that he was put to great expense and loss.

By the judgment in the trespass suit the title to the property was determined to be in the present plaintiff. The defendant objected to the admissibility of this evidence, but the Court admitted it, and the defendant excepted. The next exception was taken to the refusal of the Court to admit evidence to show that the title to ⁹³ the property embraced in the trespass suit was in Daniel B. Banks. Both these exceptions will he considered together.

If Ranstead had a right as against the plaintiff to the possession and use of the land, he was damnified by the injunction, which restrained and prohibited him from the use and possession of it. Even if Ranstead’s title were not good against any other person, the plaintiff had no right to exclude him from the possession and use of it. The controversy was distinctly between these two litigants, and the title of no other person was involved. The question in the suit on the bond is whether the injunction worked an injury to Ranstead by preventing him from •doing something which Banks had no right to prohibit.

If Ranstead had the legal right to withhold the possession of this land from Banks, most certainly the injunction caused ■an injury which is covered by the