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