
    Carroll vs. Sand and others.
    1843. July 18.
    Where an injunction to stay proceedings in a suit at law, before issue joined, is granted ex parte, by an injunction master or by a vice chancellor out of court, it must contain a provision that the defendant shall be at liberty to proceed to judgment; and if the officer upon whose certificate the order for the injunction is entered does not direct such a provision to be inserted, the injunction will be set aside for irregularity.
    The master who takes a bond with sureties, upon the allowance of an injunction, in the cases provided for in the thirty-fist rule of the court of chancery, must require the sureties to justify.
    The provisions of the 172d rule of the court of chancery apply to all cases in which an officer of the court is directed to approve of sureties; either under a special order of the court or by virtue of any of its general rules.
    This was an appeal from an order or decision of the vice chancellor of the first circuit refusing to set aside, modify, or dissolve an injunction ; and ordering the defendant Sand, and his attorney in an ejectment suit against J. M. Brown, to vacate the judgment entered in such suit, or that an attachment issue against them. The bill in this cause was sworn to on the 18th of July, 1842. On the 20th of the same month it was filed, and an injunction was obtained on a certificate of the vice chancellor, acting as an injunction master, restraining all proceedings on the part of Sand to obtain possession of a lot of land in the city of New-York; and restraining him from exercising any authority or control over the lot, or intermeddling, or interfering with the same, and from receiving or collecting the rents thereof, or exercising any acts of ownership in relation to the lot. But the day before the filing of the bill and the issuing of the injunction, Sand had commenced an action of ejectment against Brown, who was not made a party to the suit in chancery, to obtain possession of the premises. And after the service of the injunction Sand proceeded in that suit to judgment, and issued an execution for his costs only, but did not take out any other execution. Nothing was stated in the bill as to the commencement of this ejectment suit; and the injunction was granted by the vice chancellor without knowing that any such suit had been commenced. Another objection to the regularity of the injunction was that the sureties in the bond, which was given upon the allowance of the injunction, did not justify, as required by the 172d rule.
    
      L. H. Sandford, for the appellants.
    
      W. C. Russell, for the respondent.
   The Chancellor.

I think the vice chancellor erred in sustaining this injunction, as a valid injunction to restrain the proceedings in the ejectment suit against Brown, which suit was commenced previous to the filing of the bill and entering the order for the injunction. If the complainant knew of the ejectment suit, which was commenced on the 19th of July, at the time when she filed her bill in this cause, the next day, she should, before filing such bill, have amended the same, by stating the fact of the commencement of the ejectment suit, and by making the defendant in the suit at law a party. And she should also have applied to the vice chancellor to modify his certificate for an injunction, by directing the insertion of the provision required by the 33d rule, in such cases, that the defendant should be at liberty to proceed to judgment at law in the ejectment suit notwithstanding the injunction. It is true the solicitors of the complainant state that they were not aware of the commencement of the ejectment suit at the time the injunction was allowed; but that is not sufficient to establish the fact that their client was ignorant of the fact at that time. Even if she was ignorant of the fact, that would not justify the extension of this injunction to restrain the plaintiff, in the ejectment suit, from proceeding to judgment therein, contrary to the settled practice of the court. For this reason, the injunction, so far as it is supposed to operate to stay the proceedings in the ejectment suit, or the filing of a suggestion and proceeding to ascertain the mesne profits, under the statute, must be set aside or modified. And as Brown is not a party to the suit, Sand cannot be restrained from collecting his costs and mesne profits, so far as Brown is concerned. But if the right to such mesne profits are in controversy between the parties in the present cause, this may be a proper case to direct them to be paid into court, to abide the event of the suit, when they shall have been ascertained and collected by the sheriff.

I think the vice chancellor also erred in supposing that the injunction master was not bound to require the sureties in the bond, given upon the allowance of the injunction, under the last clause of the 31st rule, to justify as in other cases. The object of allowing the injunction master to dispense with sureties in certain cases, was to enable the complainant to give his own bond, where his personal responsibility, in the opinion of the officer allowing the injunction, would, in the class of cases there specified, afford ample protection to the defendant. In other words, that the master might accept a bond without sureties, where the complainant himself was worth more than double the amount of the damage which the defendant would probably sustain, by reason of the injunction, if the complainant' should fail in sustaining it. But where the officer allowing the injunction, in the class of cases mentioned in that clause of the 31st rule, is not satisfied with the sufficiency of the complainant’s own bond, and thinks that one or more sureties should join in the same, he should require such sureties to justify, in double the amount of the penalty of the bond which he may think necessary to cover the damage the defendant may sustain by reason of the injunction. The provisions of the 172d rule are general, and apply to all cases in which an officer of the court is required to decide upon the sufficiency of sureties, either under a special order of the court, or by virtue of any of its general rules. The whole of this injunction must be set aside for irregularity, therefore, unless the sureties named in the bond in this case justify, before the vice chancellor, within twenty days, or a new bond is filed with sureties who shall thus justify. And in case of such justification the injunction is still to be modified as before directed.

The proceeding to judgment in the ejectment suit against Brown, so as to place the defendant Sand in a situation to take possession of the premises whenever, or as soon as, the injunction was dissolved, does not appear to have been improper under the circumstances of this case, and is not shown to have been any injury whatever to the complainant. And Brown, who is not a party to this suit, is not entitled to the interference of this court to protect him against a mere technical violation of an injunction which had been irregularly issued. The part of the order which directs the appellants to stipulate to vacate the judgment, and pay the costs, or that an attachment issue against them, must therefore be reversed, and the motion of the complainant denied, with costs, to be paid to the appellants Sand and Turney.

Order accordingly.  