Fullerton v. Miller

Bautol, J., delivered the opinion of this Court: This was an action on an appeal bond, docketed by consent, between the appellants as plaintiffs and the appellee as defendant. No question arises upon the pleadings. The facts appearing in the bill of exceptions, so far as it is material to state them, are that Robert and John McEldowney exhibited in the Circuit Court, for Baltimore City, their bill of complaint against John Fullerton and others, and obtained an injunction against Fullerton and the other respondents, restraining them from negotiating or collecting certain two sight drafts for $2,500., each payable to the order oí' Fullerton, and drawn by R. McEldowney & Co. &o. The injunction was dissolved by the order of the Circuit Court on the 14th of November 1855, from which order an appeal was taken, and the appeal bond sued on was executed; the appellee being one of the sureties and obligors therein.

The order of the Circuit Court dissolving the injunction was affirmed by the Court of Appeals on the 22d day of June 1851. It was admitted that R. and J. McEldowney were in business and in good credit, and paying their notes at the time of the appeal, and that they continued in good credit until some time in .December 1856, when they failed in business and became insolvent. The two drafts held by Fullerton, mentioned in the injunction were produced, and were admitted to have been drawn and signed by McEldowney & Co. It was also admitted that the defendants in this suit had paid to the plaintiffs all the costs decreed, in the Chancery cause, by the Circuit Court and the Court of Appeals. A verdict was rendered by the jury for the plaintiffs for nominal damages, upon which judgment was entered, and the plaintiffs prosecuted this appeal; assigning for error the rejection by the Superior Court of two prayers offered by them, to the refusal of which they excepted.

These prayers present the question of the ⁶ measure or quantum of damages tire plaintiffs were entitled to recover, and assert the propositions that the appeal prevented the plaintiffs from attempting to collect, negotiate, or protest the drafts mentioned in the injunction, while the appeal was pending; and if the jury should find the amount of the drafts could have been collected if the appeal had not been taken, and that it was lost to Fullerton, by reason of the delay caused by the appeal, then the plaintiffs were entitled to recover the amount of the loss so sustained by Fullerton. The decision of the question presented by this exception depends upon the construction of the condition of the bond, which is in these words, “Now the condition of the above obligation is such, that if the said complainants shall not cause a transcript of the record and proceedings of the said orders to be transmitted to the Court of Appeals, within the term required by law, and prosecute the said appeal with effect, and satisfy and pay unto the said defendants, or to such of them as may be entitled thereto, their executors, administrators and assigns, in case the said last mentioned order dissolving the said injunction shall be affirmed, as well all and singular the damages, charges and costs, decreed by the Circuit Court aforesaid, to be paid by R. McEldowney & Co.,- as also, all costs'and damages that shall be awarded by the Court of Appeals, then this bond to be of full force and effect, otherwise of no effect.” Before expressing our opinion upon the construction of the words of this condition, we shall consider: First, the power and authority of the Chancery Court to require an appeal bond in- such a case: And secondly, the effect of the bond when approved, in staying the operation of the order appealed from. Prior to the Act of 1832, ch. 191, no apjDeal was allowed from an order refusing to grant an injunction, or an order dissolving an injunction. By that Act the privilege of an appeal from such order was granted ⁷ to any person aggrieved, upon the allocution of the Judges of the Court of Appeals, or any one of them being first obtained, in the manner prescribed by the Act.

By the Act of 1843, ch. 73, the right of appeal was granted in such cases. But no provision is made by that Act or any subsequent law (previous to the adoption of the Code) for giving an appeal bond. The Act of 1853, ch. 374, applying only to appeals from orders granting injunctions, or appointing receivers, or refusing to dissolve injunctions, requires a bond to stay the operation of such orders, and prescribes its condition. There being no express statutory enactment providing for an appeal bond, in a case like this, we have next to inquire whether it comes within the provisons of the Act of 1826, ch. 200.

At the time that Act was passed, an appeal in