Eakle v. Smith

Crain, J., delivered tlie opinion of this Court. This was an. action instituted by the appellant against the appellee on an injunction bond and the breaches are assigned in the narr.; the bond declared on was given on the 29th of March, 1855, and recited “that whereas the said George W. Smith is about to obtain from the Circuit Court for Washington County, sitting as a Court of Equity, an injunction to stay proceedings at law, in. an action of ejectment lately exhibited in the said Circuit Court by the said Jacob Eakle against a certain Amos Eakle, and which is now pending in said Court, whereby the said Jacob Eakle seeks to recover certain lands in the declaration filed in said cause, mentioned. Now the condition of the above obligation is such, that if the said George W.- Smith shall . prosecute the said writ of injunction with effect, &c., then the obligation to be null and void to this declaration the appellee, the defendant below, pleaded eight pleas, to all of which the appellant demurred generally, except the seventh plea, on which issue was taken — the appellee joined issue on the demurrer, and the Court rendered judgment in his favor. A general demurrer to the pleas confesses all facts stated in them, provided such facts be well pleaded and the Court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it.

Stephens on Pleading, 143, 19 Md., 239 ; 12 East., 385 to 388. Upon all the facts stated in the declaration and the pleas, was the appellant entitled to maintain his' action against the appellee ? It is alleged that at the November Term, 1854, of the Circuit Court for Washington County, there was an action of ejectment depending in which Jacob Eakle, the appellant, was plaintiff, and one Amos ⁴⁸¹ Ealde was defendant, and that the case was entered enjoined at that Term of the Court. The bond on which this suit was instituted was executed on the 29th of March, 1855; after its execution, it is admitted no writ of injunction issued and it is so stated in the plaintiff's declaration.

The condition is to prosecute the said writ of injunction with effect, and if no writ of injunction issued in virtue of it, it ivas impossible for the appellee, the obligor in the bond, to prosecute with effect a writ which never issued; his responsibility by the recital and condition of the bond, did not commence until the writ issued. In Burgess vs. Lloyd, 7 Md., 178 , it was held the recital, that the writ of injunction had been obtained, operated as an estoppel, and the obligor could not deny it; in this cáse the recital is, that he is about to obtain an injunction, and the plaintiff, before he can maintain his action, must aver in his declaration, that the writ had issued, that he had been restrained by it and that it had been dissolved or disposed of. The condition of the bond is made for the protection of the obligor, and until the obligee can assign a breach within the condition of the bond according to its letter and terms, he cannot maintain an action. The rule of law is, that the obligation is defined and limited by the terms of the condition, and cannot be extended beyond the legal import of the words used in the condition.

In a bond like this, the