
    A. P. Aldrich, Comm’r. vs. William Kirkland.
    A special injunction ordering security for the forthcoming of property in litigation, is within the powers of the Court of Equity, and may he granted hy a Master or Commissioner, under the 8th section of the Act of 1840.
    But an injunction to compel a party to find sureties to perform any other decree, such as the payment of money, is contrary to the rules and practice of the Court.
    An injunction bond, conditioned that if the defendant shall cause certain property (specifying it) “to he forthcoming, to he subject to the final order of the Court,” &c., and “shall abide hy and perform such orders and decrees as the said Court shall make in the said cause,” &c., construed, ut res magia valeat quam pereat, to require the defendant to abide by and perform such orders and decrees as the Court shall make, touching the property specified, which was to be forthcoming, &c.; and not to require the performance of any decree which the Court might make.
    Failure to perform a mere money decree, held to be no breach of the bond.
    BEFOSE O’NEALL, J., AT BA.BNWELL. FALL TERM, 1858.
    A full and clear statement of the facts of this case will be found in tbe dissenting opinion of his Honor, Chancellor Johnston, and in the report of his Honor, the presiding Judge, which is as follows:
    
      “ This was an action of debt on a bond, conditioned, that Lewis Kirkland ‘ shall, and do, well and truly cause certain property, to wit.: twenty head of cattle and two slaves, Nimrod and Comba, to be forthcoming, to be subject to the final order of the Court of Equity in a certain cause of Matthew J. Cave, trustee, vs. Lewis Kirkland and others, bill filed 5th May, 1849, and if the above bound Lewis shall abide by and perform such orders and decrees as the said Court shall make in the said cause, without fraud or further delay,’ &c. This bond was taken in pursuance of an order made by the commissioner, and pursues its terms, except that in the last clause it is broader than the order, which is, that he, the said Lewis Kirkland, shall abide by and perform ‘ such orders and decrees as the Court may make in the premises.’
    
      “ The Court of Equity made no decree for the property; it simply made a money decree based upon an account for money and property delivered to the said trustee long before the filing of the bill; nothing is said about Comba. The value of Nimrod is charged, but that was admitted to have been erroneously done, inasmuch as the money, which bought him, had been previously charged in the account at February term, 1853. The value of Nimrod was struck from the account; the cattle had been delivered and sold. Nimrod’s value was shown to be four hundred dollars; he was killed b,y Lewis Kirkland, 1st October, 1849. The Court, February, ’51, ordered that the bond should be put in suit unless Lewis Kirkland fulfilled the orders by the 5th of March then ensuing. Lewis Kirkland confessed a judgment 7th May, 1849, for thirteen hundred dollars to the defendant, to indemnify him as surety in the bond under the Ji. fa. The slave Comba was sold to, and bought by the defendant, for one hundred and five dollars. The defendant in the equity case, (Lewis Kirkland,) was shown to be insolvent. I thought, and so charged, that no breach of the bond was shown.
    “ The plaintiff chose to withdraw the case from the jury, and submit to a nonsuit.”
    
      
      “ Tbe plaintiff appealed and moved tbe Law Court of Appeals to set aside tbe nonsuit, on tbe ground, that, in tbe case made, tbe defendant was liable for tbe value of tbe two negroes, Nimrod and Comba, by reason that tbe said negroes were not forthcoming to meet tbe decretal order directing suit by a certain day. On tbe contrary Nimrod was killed by Lewis Kirkland, and the defendant appropriated Comba, under a confession of judgment, to secure himself.
    After argument in the Law Court of Appeals, the case was ordered to this Court, where it was now beard.
    Bellinger, for appellant,
    cited Aldrich vs. Kirkland, 6 Rich. 334, and contended : 1. That tbe validity neither of tbe interlocutory order, nor of tbe bond, could now be inquired into. Tbe parties are concluded by the order. They could question it only on appeal. They did not appeal and they cannot now question tbe validity of tbe order or tbe bond taken under it; Meek vs. Richardson, 4 Rich. Eq. 88. 2. That the order and bond were valid. 11-Stat. 110, § 7, 8; Bryan vs. Roberts, 2 Rich. Eq. This'question concluded by decision on first appeal. Attorney General vs. Jolly, 2 Strob. Eq. 393. 3. That there has been a breach of tbe bond; Vose vs. Hannahan, 6 Rich. 225; Gadsden vs. Bank, 5 Rich. 336; Gray vs. Gidiere, 7 Rich. 168.
    
      Owens, contra.
    The decree is for money — not for the value of the negroes. If an order, has been made for tbe forthcoming of tbe negroes, and the decree bad been for their value, the bond might have been broken. But here the decree is not for the value, but for other matters.
    The condition to perform the decree of the Court can only be broken by failing to surrender his body, or by failing to deliver specific property claimed and decreed to be delivered. It does not require that a money decree shall be paid. Tbe Court cannot require that a party shall give bond and security to pay any decree. It can require bail, or bond, as in trover, for the production of specific chattels; 5 Gill & Johns. 463; 1 Smith, Ch. Pr. 484, note.
   The opinion of the Court was delivered by

O’Neall, J.

When this case was before the Law Court of Appeals, on a former occasion, 6 Rich. 334, it would seem from the words of the Judge delivering the opinion, (p. 342,) that the Court inclined to construe the condition, as not imposing “ an absolute liability to pay a money decreeand the case went back to ascertain whether Lewis Kirkland had failed to fulfil the conditions of the bond so as to implicate the defendant, his surety, until it appeared that he was in default, in that Nimrod and Comba were not forthcoming?”

This question came before me, and I thought, that inasmuch as the Court of Equity had rendered a mere money decree, and had made no order touching the slaves, that a breach of the bond was not shown: and, on expressing that opinion, the plaintiff asked for leave to submit to a non-suit, which was granted.

The appeal brought up no other question than the correctness of this ruling, and none other was needed to have been considered.

But it has been supposed by some of the Court that the liability of the defendant to the money decree was still, notwithstanding the former opinion, open for the plaintiff to rely upon, and the defendant (as he had a right to do to sustain the nonsuit,) has denied the power of the Commissioner to grant such an order as that made in this case, and has therefore strongly urged -the unlawfulness of the bond.

This question raised by the defendant is first to be considered. The power of granting, by a Chancellor, special injunctions to restrain the party defendant from doing some act which would or might be irreparably injurious to the complaniant, is undoubted. This was, as is said by Chancellor Harper in Ramsay vs. Joyce, McM. Eq. 252, irregularly exercised against the removal of property from this State, or to compel it to be forthcoming to abide the order of the Court, by requiring security to obey the provisions of such an injunction. In the case of Ellis vs. Commander, 1 Strob. Eq. 188, such writs and such practice had the sanction of the Court.. In that case, Chancellor Dunkin says, “ Many cases may be found in the books of reports in which the defendant has been required to give security to abide the order of injunction for the- forthcoming of the property.” After that case it may be considered as settled, that an injunction ordering. security for the forthcoming of property in litigation is within the power of the Court of Equity, and may be granted by a Master or Commissioner under the 8th section of the Act of 1840, 11 Stat. 110, which says, that “Masters and Commissioners in Equity shall, in their respective districts, have the further power to grant injunctions, both special and common, conformably to the rules and practice of the Court.” If, therefore, the order for the injunction is merely for the forthcoming of the property, Nimrod and Comba, to abide the decree of the Court in relation to them, it would be according to the practice of the Court as settled in Ellis vs. Commander. But if it be further to compel the party to find sureties to perform any other decree, such as the payment of money, it is beyond all doubt contrary to the rules and practice of the Court of Equity. No Chancellor in England or this country ever granted such an injunction or made such an order. If it were to receive the sanction of any Court, I know no greater usurpation than it would be. For it would be literally binding the defendant hand and foot for the sacrifice.

But I take it, the true construction of this order and of thé bond, is, that the defendant shall abide by and perform such orders and decrees as the Court shall make touching the slaves Nimrod and Comba, who were to be forthcoming according to the words of the order and bond. It is true, the words used might extend to any order or decree made in the cause, but that would render the whole void as an illegal requisition and condition, and hence, therefore, the narrower construction is preferred; “mí res magis valeat quam pereat”

Thus construing the bond, the inquiry arises, has there been any breach of the condition ? It is clear there has been none. For the bill alleged that Nimrod and Comba were the acquisitions by the defendant from the trust funds, and therefore it claimed in one aspect that they should be delivered: and, in another, that the defendant account for the funds received.

In the report, the account is entirely for the alleged trust fund: the value of Nimrod, which was once included in the report, was afterwards struck out, inasmuch as the defendant had been already charged with the money which bought him. This report was confirmed, and the defendant ordered to pay the amount, $660.19. There is not one word said touching Nimrod and Comba: they are not ordered to be forthcoming, or ordered to be delivered up. How can it be pretended there is any breach shown ? It is plain there is none, unless it be in that part of the decree which directs, “unless Lewis Kirkland do, by the 5th March next, fulfil the conditions of the bond given by him in this cause, and dated the 7th May, 1849, the Commissioner do put the said bond in suit.” This, as was said by one of the Chancellors at the hearing, is the order of the complainant’s solicitor: it is no judgment of the Court of' Equity on the matters in controversy; it is a mere license to the complainant to sue the bond at law.

The motion to set aside the nonsuit is dismissed.

DuneiN, Da:rgaN, and Wardlaw, CC., and WhitNer, Glover, and Mumto, JJ., concurred.

Wardlaw, J.,

dissenting. The defendant’s seal to the bond is not 'denied. The condition, according to the plain meaning of its terms, has not been performed: for, although it may be said that the forthcoming of the negroes has never been required by any order of the Court of Equity, the money decree made by that Court has not been paid. The defence, then, is, that the condition of the bond, or the latter of two conditions, was unauthorized; in other words, that the bond was obtained by duress, and is not the act of the supposed obligors.

Common law bonds taken from parties and from persons who are not parties, in the Court of Equity, are, I suppose, necessary to the efficiency of the remedies there administered. When such bonds come under the consideration of a Court of law, some examination of the equity proceedings out of which they grow, and to which reference must be had in the assessment of damages, becomes indispensable. But it is greatly to be regretted, that a bond, whose validity as an obligation is disputable for reasons which assail the order under which it was taken, should be sent from equity to law; and, that when a bond is so sent, there should not be by the equity proceedings, a plain ascertainment of the amount of damages which the alleged breach has produced. As a Common Law Judge, I am incompetent to decide questions concerning the extent of equity jurisdiction or the propriety of equity practice. I feel embarrassed in groping my way through a mass of papers in a cause, which has been heard in a jurisdiction foreign to that of my own Court, and picking up a scrap here and a scrap there, in the effort to collect what has been decided pertinent to the condition of a familiar instrument that appears to be a plain obligatibn. When, it is proposed that I should venture further and inquire whether what has been done was proper in itself, or properly done, I stop and examine the extent of my own powers. Here the Chancellors have been called to the assistance of the Law Judges in the Court of Errors; but skilled as they are in the learning pertaining to their own Court, they become in the consideration of a law appeal mere law Judges like my brethren and myself. The question for us all, in this case, is, what should the Circuit Judge have done ? Ought he to have ordered a nonsuit ? — and it must be decided by us all, as it should be decided, if each was a member of the law bench exclusively.

I have read, and suppose it is true, and properly so, that Chancery .is jealous of the supervision-of its process by any other tribunal: so much so that it .will enjoin an action for a false imprisonment had under its attachment irregularly obtained. I have been taught that it moulds its practice at discretion to subserve the ends of justice. The interlocutory orders which shall be made for the preservation of property during a litigation, or for retaining the means of rendering a final decree efficient: the manner of obtaining an order for ne exeat or injunction: the mode of executing an order: the substitute which shall be accepted for a strict ne exeat bond; and the terms upon which an obligation, made under an order, may be discharged, — all I understand to be matters of equity practice. When I am told that the office of an injunction is to restrain the doing of an act, and not to compel the performance of one, if I see an order properly made which requires the performance of an act within the province of equity, and which is enforced by an effective process, I do not trust my judgment in searching equity precedents and determining the appropriate names of equity writs, but I leave those who would cavil at the practice, to apply to the Court whose authority is involved in the order, and from whose armory the process was selected. When the oppression and hardship of requiring from a defendant- in equity, before the case against him has been heard, security to answer the decree, are urged upon me, I remember that such security is no more execution before judgment, than is bail in a common law Court, and is said to be often in equity practice taken in mitigation of the severe requirements of a strict ne exeat. If a bond containing such security is brought before me, and the sureties complain that no opportunity to render their principal in discharge of themselves has been afforded, I regard the order of a Chancellor that the bond shall be put in suit at law as decisive, according to the practice of equity, either that all proper opportunity has been afforded, or that the render in discharge was no part of the condition. I cannot say that under no circumstances could equity in the exercise of a sound discretion require a bond to answer a decree in all events; nor that the defendant in equity did not regard such a bond as a favor to himself granted in ease of more rigorous terms that might have been exacted; nor that the sureties to the bond did not enter into it with a full understanding of the .obligation they were incurring. It is their act, and is subject only to the condition written in it, unless it was obtained by duress. There could have been no duress if it was taken under an order which was within the competence of the officer who made it.

The true point in this case is then contained in the question, whether the Commissioner in equity had power to make the order which he did make. This question requiring of one Court to judge of the acts done by an officer of another Court is in its nature a difficult and delicate one; and it becomes more so,.when we consider the superintending control of a Chancellor over the Commissioner, which is contemplated by the Act of 1840, when it confers upon a Commissioner power to grant orders for ne exeat, and for injunctions common and special. It might well be expected that if the Commissioner ■exceeded his powers, application for discharge of an obligation improperly extorted would be made to a Chancellor at the next sitting, or at any rate when he comes after final decree to order a suit upon such obligation. But it may be answered, that the surety in the bond was not a party in equity, and that no subsequent ratification of a Commissioner’s acts by a Chancellor, could give validity to an instrument which was not binding on the surety when it was executed. In considering the Commissioner’s power, the recognition of an instrument taken under his order, which a subsequent order of a Chancellor .made for enforcing the instrument contains, is however very influential to show the practice of the equity Court: and an order, which in effect partly restrains the removal of property, and partly requires a mitigated ne exeat bond, when thus impliedly approved by a Chancellor, ought, as it seems to me, to be held in a Court of law to be embraced by the terms used in the Act of 1840.

I come then to the conclusion, that the payment of the money decreed, was required by a condition of the bond which the defendant before us, as obligor, was bound to perform, and that by non-performance he has incurred the penalty of the bond, under which damages to the extent of the decree should be assessed.

There is, however, another view under which,"even if the Commissioner had power only to order a bond for the forthcoming of specific property, and not for the performance of a decree, the plaintiff in this case might be entitled to recover. The decree of the Chancellor, — that the defendant in equity pay a certain sum of money, and that unless by a day certain he fulfil the conditions of the bond, the Commissioner put the bond in suit, — is in effect a decree that the specific property mentioned in the condition be forthcoming to answer the sum decreed; and imposes upon the surety, the defendant here at law, the burden of showing either the forthcoming or a sufficient excuse. The two conditions of the bond may be considered as alternative, or the latter may be considered void and the former broken. The result is the same in either view.

It is surely a most inequitable result that has been attained, where of two negroes claimed to be subject to the trust mentioned in the bill, the principal has disposed of one, and the surety has bought the other under his judgment taken to indemnify himself against this bond, and now the bond is inoperative, tbe principal is insolvent, and the surety goes ■without day.

Withers, J.,

dissenting. By adverting to the report of this cause in 6 Rich. 334, it will be seen that under a bill in equity, Lewis Kirkland was charged as being accountable to the com,plainant (Oave) for certain trust funds; that he had laid out some of those funds in a negro named Nimrod, taking title to himself, and some in another negro named Oomba, taking title in the name of the trustee’ who was complainant. Among other things an injunction was asked to restrain Lewis Kirkland “from disposing of- any of the trust property, or of the property purchased with the trust fund.” A special injunction was ordered accordingly, and this defendant joined Lewis Kirkland in a bond, conditioned (inter alia) that Lewis Kirkland should cause the “two slaves, Nimrod and Comba, to be forthcoming to be subject to the final order of the Court of Equity,” in the cause of Cave against him. An account was taken, but the value of Comba and Nimrod was not charged, eo nomine, against Lewis Kirkland; the account in the aggregate became the decree of the Court. Action on the bond was also ordered upon a condition which occurred, and it was brought against the defendant, who was surety, and before Judge Evans he was held responsible for the entire amount of the decree in equity, upon the footing of another condition of the bond, to wit: “ that the said Lewis shall abide by and perform such orders and decrees as the said Court shall make in the said cause.” Upon appeal, this Court held that the “ decree in the cause,” perceiving that it embraced the entire liability of Lewis Kirkland in all the matters in litigation, was not the proper measure of liability and of damages as against William Kirkland, the surety and the defendant in action. It was perceived that the circuit doctrine would make the surety absolutely responsible for the whole debt and liability of the party defendant in that jurisdiction, under cover of a special injunction, wbieb looked only to the security of certain property to be forthcoming to answer the final order of the Court in the cause; that, in such circumstances, he would be in far worse condition than a surety on a bond under writ of ne exeat, “ a proceeding of extreme rigor,” (vide Commissioner vs. Phillips, 2 Hill, 634); for, in the latter case, the surety would have the right to surrender the principal in exoneration of himself; that there was most palpable difference in a covenant to abide by and perform any decree in a case, and one to cause certain specified property to be forthcoming for that purpose. This Court construed the latter to be the obligation upon the defendant.

In the opinion formerly delivered, various arguments and Suggestions were offered to show the undue rigor of the rule adopted on the Circuit. They will not be made here the subjects of comment; but it does not seem to be intimated that no damages at law can be recovered against William Kirkland. If none can be recovered under the construction we give to the instrument, (mitigated towards the surety,) then it is of course a nonentity at law as against him. That is not supposed to be the opinion of the Court. The idea probably is, that some specific decree is required for the forthcoming of the specified property before the bond can be enforced. Why should that be held necessary ? The covenant is, that it shall be produced to answer a decree in the cause, not one relating to the property itself.

The better opinion probably is, that the judgment of the Court of Equity should have been produced requiring the production of the negroes. Then is not that found, with sufficient distinctness, in the decretal order of 14th February, 1851, in the words following: “ It is further ordered, that unless the said Lewis Kirkland do, by the fifth day of March next, fulfil the conditions of the bond given by him in- this cause, and dated 7th May, 1849, the Commissioner do put the said bond in suit.” When we remember that the bill had been taken 'pro confesso, and that the bill had charged the specified negroes to be the exponent of a part of the trust funds which were decreed against, the principal in the bond, and when we advert to the condition of the bond, that they should be forthcoming to answer the decree, is it an unfair inference that the Court had decreed that they should be forthcoming on or before the day stated, and that a default in that behalf might, in the absence of satisfactory excuse, be a legal breach of the bond ? That decretal order must be considered the act of the Chancellor, for one clause decrees that defendant in the bill do pay costs. It is not doubted that it is entirely competent for the Commissioner or a Chancellor to secure by writ, in nature of a special injunction, the forthcoming of specific property having the earmark of a trust fund upon it — and to decree that it shall be produced by a day certain. It does appear to me that this has been done in this case; and, therefore, that the plaintiff should have been allowed to go to the jury. I agree that, as I am now advised, a writ and a bond obliging the defendant to give security generally for a debt or liability, or to stand to, abide by, and perform the decree in a cause, cannot be brought under the head of a special injunction. I agree also, that while the Court of Equity must regulate, unquestioned by a co-ordinate jurisdiction, its rules of practice, yet, that when one of its bonds comes to a Court of Common Pleas, it must meet there the rules of the Common Law. But I think this bond contained one condition not offensive to the Common Law, and that such proceedings were had in equity in relation thereto, as to warrant its Commissioner to go to the jury and show its breach.

Johnston, Ch.,

dissenting. Lewis Kirkland, whose wife was entitled, for life, to an interest in certain settled property, had received from Cave, the trustee, in February, 1836, a negro woman Lucy, cattle of the value of one hundred and twenty dollars, and cash, capital of the trust, to the amount of four hundred dollars. The wife died in 1849, which determined her interest.

Cave thereupon filed his bill against Lewis Kirkland, the husband of the life tenant, for the restoration of the trust property, to answer the ulterior provisions of the settlement. In this bill it was alleged, that the husband had committed adevastavit by selling Lucy and applying the proceeds to his own use, and by vesting the four hundred dollars, which he had received in cash, in the purchase of two slaves, Nimrod and Comba, the titles to whom he took in his own name. The bill prayed that the stock of cattle be replaced, that the negro which had been sold be restored or her value accounted for, and that the negroes purchased with the trust funds be declared parcel of the trust estate, and delivered over as such, or their value, or the funds employed in the purchase, accounted for; and for general relief.

In the bill it was also alleged that the defendant was deeply embarrassed, and had exhibited evidence of an intention to remove himself with his property, including the slaves Nimrod and Comba-, beyond the jurisdiction of the Court.

This bil-1 was sworn to.

Under these circumstances, and before the cause was brought to a hearing, the commissioner of the Court, Mr. Aldrich, made an order “That the said Lewis Kirkland do give bond and good surety, in the penal sum of thirteen hundred dollars, conditioned for the forthcoming of the cattle and the slaves Nimrod and Comba, named in the bill, to be subject to the final order of the Court in the premises; and also, conditioned that he, the said Lewis Kirkland, shall abide by and perform such orders and decrees as the Court shall make in the premises.” And on the 7th May, 1849, Lewis Kirkland gave to the commissioner his bond, with Wm. Kirkland as surety, conditioned that, “ if the above named Lewis Kirkland, his heirs,” &c., “shall truly cause certain property, to wit: twenty head of cattle and two slaves, named Nimrod and Comba, to be forthcoming, to be subject to the final order of the Court of Equity, in a certain cause of Matthew J. Cave, trustee, vs. Lewis Kirkland and others, filed the 5th May, 1849; and if the above bound Lewis shall abide by and perform such orders and' decrees as the said Court shall make in the said cause, without fraud,” &e.

The bill was subsequently taken pro confesso: and a reference was held by the commissioner: who reported:

“ Lewis Kirkland, in account with Matt. J. Cave, trustee.
“ 1836, Feb. 11, To value of Negro Lucy delivered to Kirkland by trustee, and sold by Kirkland, $500 00
“18.36, Feb. 11, To cash paid Kirkland by trustee, 100 00
“ 1836, Feb. 11, To cash paid Kirkland for land, 300 00
“1836, Feb. 11, To value of cattle, 120 00
$1020 00
“ 1851, Feb. 20, Interest to date, on $900 00, from 20th April, 1849, when Mrs. Kirkland died, $110 00
$1130 00
“ 1836, Feb. 11. Deduct one-third, L. Kirkland’s share, $376 66
“1836, Feb. 11. Deduct sale (of cattle, 93 15
$469 81
“Balance due M. J. Cave, trustee, $660 19”

And on the 14th February, 1851, the following was passed as the final order in the cause:

“ On hearing the report of the commissioner in this cause, it is, “on motion of Bellinger & Hutson, complainant’s solicitors, “ ordered that the same be confirmed and made the judgment “of the Court: — and that the defendant, Lewis Kirkland, do “ pay to the commissioner, (to be by him invested in good bonds “and personal securities,) the amount reported to be due by “ the said Lewis Kirkland: and that the said Lewi's Kirkland “ do pay the costs of this suit. It it is further ordered, that “ unless the said Lewis Kirkland do, by the 5th day of March “ next, fulfil the conditions of the bond given by him in this “ cause, dated the 7th May, 1849, the commissioner do put the “ said bond in suit. Feb. 14, 1851.

“Benjamin F. Dunkin.”

The bond was put in suit accordingly, against Wm. Kirkland, the surety. On the trial, as I learn from the judge’s report, it was shown that Nimrod, shown to be worth four hundred dollars, was killed by Lewis Kirkland, the defendant in equity, on the 1st of October, 1849, after the bill was filed against him: and that pending the suit in equity, to wit, on the 7th of May, 1849, the same day on which the bond was given, Lewis Kirkland confessed a judgment to Wm. Kirkland, to indemnify him as surety on the bond: under which the slave Comba was subsequently purchased by Wm. Kirkland at the price of one hundred and five dollars. And it further appeared that Lewis Kirkland was insolvent.

The judge ruled that there was no breach of the bond; and nonsuited the plaintiff. An appeal was taken from that decision : and from the Law Court of Appeals the appeal has been removed to this Court for adjudication.

Whether there was any decree for the production of the slaves, Nimrod and Comba, or not, there was certainly a decree for the sum of six hundred and sixty dollars and nineteen cents; and the terms of the bond being (among others,) that the above bound Lewis shall abide by and perform such orders and decrees as the said Court shall make in the said cause,” — the non-payment of this money was a clear breach of this condition, if the bond was not void.

If the final order gave Lewis the privilege of obviating the money decree by the delivery of the negroes within the time limited in that order, then the production of the slaves became an alteimate condition; and, on non-complianee with it, the bond called for the money: so that the eventual breach was the non-payment of the money, — the equivalent or substitute of the negroes.

But it has been argued that the commissioner had no authority to require a bond from a defendant in equity, obliging him. to pay whatever sum might be eventually decreed against him in money, whether decreed alternatively or directly.

This objection necessarily implies that although the condition of the bond in this case, for the payment of money, is broken by the failure to pay it; — yet the Court, of law is to regard it no breach, (contrary to the very words of the instrument,) if it can be satisfied that the commissioner erred in inserting that condition.

This proposition palpably involves the question, how far one' co-ordinate Court is authorized to enquire into, or review, the proceedings in another co-equal and co-ordinate Court of superior and.undefined jurisdiction.

Now, it is freely admitted that there is a boundary to the authority of every Court; and if it transcends that boundary its acts are null. As if a Chancery Court were to assume a criminal jurisdiction, and try, convict and punish in capital cases. Or, if a Law Court should assume chancery powers, and administer trusts. But it is a universal principle that the proceedings of all Courts, not of limited jurisdiction, upon subjects of which they have jurisdiction, are not examinable collaterally in any Court. Not in the same court; — because a collateral examination might serve to surprise the parties, and deprive them of the aid of those ^circumstances by which the proceedings might, if directly investigated, be sustained: take away the confirmatory effect of acquiescence, or consent, which may have cured the proceeding: and obscure the light which a more direct examination of the subject might afford the Court in coming to a proper decision. Not in a Court of concurrent, jurisdictiob: because, in addition to tbe reasons already given, such a course would necessarily lead to conflict of jurisdictions, to irremediable confusion of rights, and to intolerable oppression of the sureties. And certainly, not in merely a co-ordinate Court of diverse jurisdiction, — because in addition to all the reasons just given as to Courts of identical and concurrent jurisdiction, such a proceeding would amount to the assumption of a jurisdiction altogether foreign to the functions of the Court undertaking the examination.

In the latter case, it may be added that there would be a seeming trespass on the constitution under which all the Courts in this State hold their authority. That instrument vests the judicial power distributively, in such Courts of law and equity as the legislature may create and establish, and provides for a responsibility to the legislature for the administration of these judicial trusts. If one of the trustees, so to speak, should abrogate the act of another and distinct trustee, it would savor of the assumption of a duty for which he was not commissioned, and frustrate that other in an attempted performance of his appropriate duty: besides drawing his acts ad aliud examen, away from that forum constitutionally instituted for this investigation.

The true doctrine, it appears to me, is plainly this, — that the proceedings in all Courts of superior jurisdiction upon subjects within their cognizance, are valid until set aside: and can be set aside only in a direct proceeding for that purpose: which proceeding can take place only in the same Court, or in an Appellate Court sitting in the same jurisdiction.

The mere incorrectness of any proceeding in a cause, in any Court; its inaccuracy or want of exact conformity to the settled practice of that Court, do not so vitiate the proceeding itself as t<5 render it null. There must be a want of jurisdiction on the subject matter to produce that result. The mode of administering its jurisdiction must be left to every Court: and no other Court can safely undertake to regulate its practice. Every Court, — and we have daily examples of the fact, — is liable to erroneous judgments both as to practice and doctrine; but it is not the province of any other Court to correct them. They are to be corrected only in the regular course of appeal, where the matter is drawn directly under examination.

Suppose a Court, in a matter of ne exeat, orders an injunction bond; and the party acquiesces; and the Court and the other parties, depending on what has been done, and not questioned, proceed to a final decree accommodated to that order and bond: what an injustice would be perpetrated if that Court should at a future day allow the party to take an exception which he had foregone at the proper time, and permit the record to be garbled, and the order and bond to be rescinded and set aside ? How much higher injustice would be perpetrated if another and co-ordinate and not a superior Court, should undertake, not to set them aside or rescind them, but to pronounce them invalid ?

The view I am taking is not new to me. So long ago as 1882, in my second year, I held- the same doctrine.' In Maxwell vs. Conner, I upheld the erroneous judgment of the Law Court, because it was rendered on a matter within its jurisdiction: and I refused to review or correct it: and, moreover, although the same jurisdiction belonged to my own Court, as a concurrent Court, I denied a remedy to the party aggrieved, because, while entitled to it, in either Court, he had submitted to the erroneous judgment of a competent forum. My decision, in all the views I advanced, was affirmed by the Court of Appeals of that day.

I paid the same deference to the decision of a Court in a sister state, in Johnson vs. S. W. R. R. Bank, however much I may have doubted its correctness.

Johnson, J.,

in The State vs. Scott, — speaking even of an inferior Court, created by statute for special purposes, said:— “ It is difficult to conceive of a proposition more obvious, than that, prima facie, every Court must possess the power of judging of its own jurisdiction, both in relation to the persons of the parties and the subject matter of litigationand held that the party having submitted to the jurisdiction, afterwards came too late to correct the judgment.

In Gist vs. Bowman, we have a singular proof of the extent to which matters would proceed if it were permitted to one Court to invalidate, or disparage the proceedings of another collaterally. An attachment had been issued to compel an answer in chancery; and a discharge under habeas corpus was moved for on the ground that a single Chancellor could not authorize the attachment. It seems the point was gravely debated, but, as might have been expected, the Judges “ were all of opinion, that they had no jurisdiction of the matter: it belonged exclusively to the Court of Equity.” The case is amusing as well as instructive. Would that Court have discharged Kirkland if he had applied to them before giving his bond? or would it have said it “had no jurisdiction of the matter: — it belonged to equity ?”

Ex parte Gilchrist, was a case in which the applicant was in custody under a writ of ne exeat issued by the commissioner in equity for Chester, and moved for discharge on the ground, that the bill filed did not state a casein which the commissioner had power to order a writ of ne exeat. HuseR, J., refused to look into the bill for such a purpose. Upon appeal, JOHNSON, J., delivered the opinion of the Court in terms so manly and so wholesome that I shall take the liberty of repeating here several passages from his judgment. “ The Act,” says he, “invests the commissioner with the power of the Chancellor in relation to granting orders for the writ of ne exeat, in all cases of practice.” “ In the organization of the judicial department of the government, certain powers were assigned to the different tribunals, corresponding with the nature and extent of the jurisdiction confided to them: and, in the exercise of those powers, — except so far as the right of appeal is given, — the most subordinate are as absolute and authoritative as the tribunals in the last resort.” “And I should deprecate, — even more than the repeal of the habeas corpus Act, — that state of things in which tribunals, without the forms of lazo would be permitted to review and control the judgments of each other ad libitum. The habeas corpus Act certainly confers no such power. Its object was to secure the citizen from illegal and arbitrary imprisonment: and the wildest speculations have never yet carried it so far as to subvert all law and order: for, even in the case of Yates v. Lansing, than which, perhaps, no case was ever more warmly contested, the bone of contention was whether the Chancellor had jurisdiction over the subject matter for which he caused the plaintiff to be attached.” “ The presiding Judge had no more power to discharge” the prisoner than the commissioner would have had to discharge a culprit committed for execution by a Court of Sessions.”

This is sound, conservative, and wholesome doctrine. The Court would not inquire whether the case authorized the issue of a ne exeat: but leaving that inquiry to the review of the Court in which the order was made and whose jurisdiction was concerned, dismissed the application, as unauthorized by sound principles of proceeding. I beg that this judgment may not be forgotten, when we hereafter touch upon the question, whether the order of Mr. Aldrich was justified by the circumstances of the case before him.

In McKee vs. Council of Anderson, the case turned upon the question, whether the tribunal whose decision was under consideration, had or had not jurisdiction of the subject matter, and being found to have it, the Court refused to interfere.

In Brown vs. Gibson, when the power of an Ordinary to revoke probate of a will made by his predecessor was questioned, all tbe parties in- interest not being before tbe Court, JOHNSON, J., said: “The decree of the Court of Ordinary, revoking tbe probate of the will, was the judicial act of a court possessing jurisdiction over the subject matter of dispute, and the law holds the exercise of this right so sacred, that no evidence will be permitted to control it, in relation to the subject of dispute, so long as it remains unreversed by the order of a superior tribunal; and this can only be done on an appeal to the Court of Common Pleas, in the manner pointed out by 'the Act of Assembly.”

And in Starke vs. Woodward, where after going into equity for the assertion of title to negroes, and losing his case, the defendant resisted the plaintiff’s title at law, and undertook to contest the decree in equity which had been rendered against him, Justice Nott, in a very clear opinion ruled the case against him, referring to authority to sustain the position that the judgment of a competent tribunal on a subject of its jurisdiction is conclusive, so long as it stands, on all other tribunals. The cases mentioned by him are clear to the point: among which is that of Maingay vs. Gahan, where Lord Chancellor Fitz-gibbon, sitting with all the judges in the Exchequer Chamber of Ireland, says, sitting in a court of law, I am not at liberty to enter intoan examination of the justice or injustice of any judgment of a court of competent jurisdiction, unless it comes before me by a writ of error. All parties to such a judgment are bound by it, until it is reversed by a court having authority to review it.”

Harvey vs. Huggins, covers nearly every principle involved in the present case. Harvey had obtained a decree in equity against one Murrel for about $6,000 : and, in order to compel payment of this sum, sued out and lodged with Huggins, the sheriff, successively a fi. fa., an alias, pluries and second pluries. The first fi. fa. and the alias were returned nulla bona. Under the first pluries Murrel’s land was sold ; and under the second pluries three of his negroes. These sales left due on the decree four thousand fire hundred dollars.

Previous to the issuing of the second pluries, upon affidavit that Murrel was preparing to remove certain of his negroes out of the jurisdiction, Chancellor De Saussure ordered that a writ in the nature of a writ of ne exeat issue, “ to compel Murrel to give bond with sufficient sureties” that he would not remove the property. Murrel was arrested, and was subsequently permitted by the sheriff, to go at large, without being legally discharged. The escape was permitted after an ineffectual application had been made to Chancellor De Saussure to set aside his order. Harvey brought an action against Huggins, the sheriff, for the escape, and got a verdict; and on a motion by way of appeal to set it aside, O’NeaIiL, J., delivering the opinion of the Court, after stating the grounds taken in support of the motion, the first of which was, “ that the process under which Murrell was confined was void,” proceeded to say: “ To establish the first ground, it ought to have been shown that the Court of Equity had no jurisdiction of the case in which the process was issued.” “But it is conceded that the Court had jurisdiction: and the whole force of the objection is, that the process was not according to the practice of that Court, and not warranted by it. This, I have no doubt, is true: and I have as little doubt, that, on a proper application by Murrel, the Court of Hquity would have set it aside. But this not having been done, it is a subsisting process of a Court of competent jurisdiction, in a cause within its jurisdiction. In a court of law, it must be taken to have been regularly issued ; for each court is the judge of its own proceedings. Both are co-ordinate tribunals, possessing equal powers over the cases, respectively, within the jurisdiction of each; and neither has the right to look into, or correct, in point of form, the proceedings of the other.” This is a very important judgment, and I trust that no part of it will be forgotten in the discussion of other points hereafter to be noticed in this case.

It will be observed that I bave quoted no eases but those of our own courts, and none, hardly, but those of courts of law. I could extend the list of cases, almost indefinitely, by referring to those of foreign courts and our own cases in equity, all of which are to the same effect. But I stop here, having demonstrated, as I conceive, that if this Court, sitting as a law court, and administering a law jurisdiction, in a law case, should undertake to annul the bond now in suit, or the order under which it was taken, from an apprehension that the papers are not in conformity to equity practice, it will contradict the well settled doctrine of our law courts themselves.

I assume that the Court in which I now sit is as to this case purely a law court. As a law court, it is, in this case, superior to the law court from which the case comes; because that case is brought directly before it, by way of appeal, for review. But in respect to the proceedings in equity, which are not appealed from, it is as strictly a co-ordinate court as are the Circuit and Appeal Courts in law. It has no right to review, collaterally, the proceedings in equity ; but must give effect to them, as subsisting judicial records, until they are vacated in the regular way.

In this discussion I have also hitherto assumed, that the acts of the commissioner were acts within his jurisdiction, and which he was competent to perform ; and I have furthermore assumed, that however irregular his practice may have been, they were done under the supervision of the Court, and constituted, when performed, parcel of the proceedings in the case; and, as such, part of the record.

Am I right in these assumptions ? The commissioner is not merely a ministerial officer. His acts are not, in all cases, merely ministerial. This officer is not the creature of statutory law; but existed, with powers and functions established by usage, anterior to any enactment in this State. By statute he is authorized to make all orders which a Chancellor could make in the preliminary stages of causes in court, so as to prepare and clear the way for a full and unobstructed decision of each case, according to its character when it comes on to be heard. And in his common law character, he is authorized to do all acts, ancillary to the Chancellor, to enable him to make a just and efficient final disposition of the case. All these acts are done under the control and supervision of the Chancellor: and, when brought regularly before him, may be corrected, modified or rescinded. But, if acquiesced in, or cured by consent, they remain as proceedings in the cause.

Now, if the order passed by Mr. Aldrich was not regular, according to equity practice, was it proper in the parties affected, to steal away to another distinct forum, to get its opinion on the matter, instead of making their complaint in the regular way, and in due form, in the Court where the irregularity or injustice was done? a Court which, alone, was entitled, and bound, to investigate the particxtlar circumstances by which the act done might be justified or condemned: which alone could bring these circumstances before it by a direct examination ; and which may be supposed as well qualified, at least, to judge of and regulate the practice and the doctrines of its jurisdiction, as another and foreign court.

When one independent court undertakes to investigate the practice, the powers, and the principles of another distinct court, it is liable to many mistakes; and if it infers from the past, what ought to be its present modes of procedure, it subjects itself to much error of judgment. For example, the order made in Harvey vs. Murrel, and referred to in Harvey vs. Huggins, was thought by a law Judge to be quite extraordinary ; and yet, it would bear much discussion in an Equity Court, whether the circumstances of the case did not call for just such an order. Again, if before Gadsden vs. The Bank, the question had been submitted to the opinion of a law court, whether such an order as was made and approved in that case, was justified by equity precedents, it might have entertained very grave doubts on the subject. I turn, again, to Young vs. Burton, where the equity jurisdiction in relation to the delivery of specific slaves was for the first time established ; and I ask, with sincerity, if before that decision, a master, or commissioner in equity, had made an order looking to such a remedy as that case legitimated, would a law court have regarded his order as conforming to the practice within the equity jurisdiction ?

It is not necessary in this case to establish the exact propriety of Mr. Aldrich’s order. It is sufficient if he was acting within his jurisdiction when he made it. But I may be permitted to look-a little to the circumstances in which he passed the order, for the purpose of discovering whether he committed so great a trespass as has been suggested.

The bill was one in which the allegation, sworn to at the time, and never at any time contradicted, was that a life-tenant, himself a trustee for those in remainder, had sold a trust slave and pocketed the proceeds to his private use, and had, without authority, vested cash trust funds in slaves, taking the title to himself, and was embarrassed, and on the eve of absconding with all his tangible property. The prayer of the plaintiff in that case was for specific relief by a decree for the negroes, or for an account of their value. This was the case before the commissioner and in which he was to make an interlocutory order to remove all impediments to a fair and full decree, such as the plaintiff in such a cause was entitled to. Would it have been an unfair, or improper final decree in such a casé for the Court to have directed that the negroes be delivered up, and that the defendant be excused from -that judgment only upon paying their ascertained value ?

From the bill, would not Mr. Aldrich have been justified in anticipating that such a decree might eventually be made ? I am not sure that it was not made in 1851. But be that as it may, Mr. Aldrich had a duty to perform suited to the nature of the bill before him : and he was no prophet, but was obliged to do the best he could. Did he make a very great mistake ?

It must be remembered that, according to the case of Fraser vs. McClanaghan, if a party entitled to the delivery of specific slaves, files a bill for that purpose, and some of the slaves die pendente lite, he is entitled to a decree for the value of the ne-groes, in lieu of, and as a substitute for the negroes themselves. It is an incident of such a case. How could Mr. Aldrich know that some of these slaves might not die during the suit ? One of them did die, and that by the hands of the defendant to the cause, and he spirited away his property in another; and shall he or his privies make advantage of his own wrong ?

It has been said there was no evidence before the Chancellor of the devastavit of the defendant by misinvesting the trust funds, and, therefore, his decree cannot have had any reference to the delivery of the slaves wrongfully purchased. Suppose this were granted, how could Mr. Aldrich know when he made his order, that there would be such an omission at the trial? But is the fact as stated? Why, — was not the bill taken fro confesso ? and had not the Chancellor the evidence of the defendant’s own admission ?

Those who will consult and carefully consider what is said by Chancellor Walworth, in Mitchell vs. Bunch, in relation to practice in Courts of Equity, and particularly to the practice in the English Court of Exchequer, will hesitate much in accusing Mr. Aldrich of a very palpable blunder.

But conceding every irregularity that can be imagined, is it certain that the order, and especially the bond given under it, should be disregarded ? Is it certain that the bond was not drawn up and tendered, in the terms so much objected to, by the obligors themselves, and not extorted by Mr. Aldrich ? How can that be known, when 'the inquiry is made apart from all circumstances into the naked authority of the commissioner; and the bond is to be set aside on that abstract view of the matter ?

I suppose, if the order had been for a pure ne exeat bond, the defendant in the suit might have placed a sum of money in the hands of the commissioner, to satisfy the final decree; or he might have declined to give a ne exeat bond, or ask any sureties to join him in one, if his settled intention was to leave the State never to return; and, if under these circumstances he had done either of these things, would the securities given have been void, or the commissioner wrong ?

Analogous to the last case just suggested was the case of Jessup vs. Hill, where one of the defendants to the suit had been arrested upon a ne exeat, and after giving bail, by agreement the ne exeat was discharged, upon his executing bond to answer the bill and abide the final decree. A future application for the delivery up to him of this bond was refused; although under other circumstances it might have been granted.

The bond in the present case must be held, in this Court, to have been well taken. If the parties had chosen to question it, they would have been heard on a motion in equity to set it aside. And again, when the bond was ordered out of that Court for suit, they might have opposed that motion. Having neglected both these legitimate grounds of relief, they should not be heard here.

I hold it to be clear that when a security, taken in Chancery, is issued, for suit, by that court; although all extrinsic grounds of defence may be raised against it, yet the authority of the obligee, acting as the agent of the Court, to take it, can never be set up as a defence to the instrument.

I am of opinion the nonsuit should be set aside.

Motion dismissed. 
      
       1 Hill, Cb. 14.
     
      
       3 Strob. Eq. 300; Id. 328.
     
      
      
         1 Bail. 294, and see State vs. Stewart, 5 Strob. 31-2.
     
      
       2 Bay, 182.
     
      
       4 McC. 233.
     
      
       4 Johns. R. 317; 5 Id. 282 ; 6 Id. 337.
     
      
      
         Rice, 24.
     
      
      
         1 N. and McC. 326.
     
      
      
         Toller, 76.
     
      
       1 N. and McC. 329, note.
     
      
      
         Irish. Term R. 1.
     
      
      
         2 Bail. 252.
     
      
       2 Strob. Eq. 227.
     
      
       2 Paige, 617. See also Ms observations in McNamara vs. Dwyer, 7 Paige, 244.
     
      
      
         7 Paige 95.
     