
    James Fant vs. J. C. C. Martin and John Sanders.
    Special injunction requiring defendant in Equity to give bond not to remove a slave, &c., granted by Commissioner, upon condition that plaintiff in Equity give bond to pay all damages defendant might sustain in case of plaintiff’s failure in his bill: — Reid, that the bond given by plaintiff was void — the Commissioner having no authority to require him to give such bond.
    The only case in which a Commissioner can require a plaintiff, applying for an injunction, to give bond, is where the application is for an injunction to stay execution or suit at law.
    BEFORE WITHERS, J., AT UNION, SPRING TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows: “ This was an action of debt founded on a bond taken by tbe Commissioner, preliminary to a writ of injunction granted against tbis plaintiff j 1 to restrain bim from removing a certain slave without tbe jurisdiction of tbe Court’ of Equity, and 1 to compel bim tó enter into bond with surety, not to’ remove tbe slave without tbe jurisdiction, and to have tbe slave forthcoming to abide tbe order of the Court.’
    “ A bill in Equity, it appeared, bad been filed against tbe present plaintiff, at tbe instance of Mrs. Eleanor Martin, feme covert, by her next friend, J. 0. 0. Martin, claiming tbe slave, alleging an apprehension of her removal, with a prayer for ‘ a writ of ne exeat regno] and a ' special injunction.’ Tbe Commissioner bad made an order, that ‘ on J. C. C. Martin entering bond with surety,’ &c., ‘ to James Fant,’ conditioned ‘ to pay or satisfy tbe said James Fant all damages be shall sustain in case tbe complainant shall fail to maintain her action,’ &c., ‘ that a writ of injunction do issue from tbis Court, to restrain,’ &c., as above set forth.
    
      “ Tbe bond was entered into by these defendants, in conformity with tbe order; and an injunction granted. Tbe present plaintiff was arrested, and in turn entered into tbe bond required, and on tbe bearing of tbe case tbe bill was dismissed.
    “Tbe present suit'was brought to Spring Term, 1856. It appeared, farther, that a fi.fa. bad issued for tax cost, amounting to one hundred and twenty-five dollars and sixty-four cents, and a ca. sa. likewise. On these there was a return of 1 nulla bona' and ‘non est inventus,’ to October Term, 1856, being tbe Term next after tbe return Term of tbe writ in this case.
    “ Tbe Commissioner in Equity was examined, and produced tbe original papers. He proved that there bad not been any order from tbe Court of Equity, directing this bond to be placed in suit — that be would not have granted an order for injunction, except tbe preliminary bond was given — that the usual fee for conducting such a defence as was made in this case in Equity, was one hundred or one hundred and fifty dollars; perhaps tbe former would have been a proper compensation, and be knew of no other injury or damages sustained than arose from tbe moneys expended by tbe present plaintiff, and that be bad supposed tbe bond would cover only tax costs. It was further understood that a sum sufficient to meet tbe costs bad been deposited somewhere, perhaps with surety Sanders, to abide this suit. ,
    “ On closing bis case by tbe plaintiff on this evidence, a motion was made for non-suit, on tbe grounds to be found in tbe notice of appeal.
    “ Notwithstanding my doubt' whether a case was made on which plaintiff could recover, I declined to entertain tbe mo • tion; and no evidence being offered by defendant; tbe case was submitted to tbe jury. That tbe case might be presented before tbe Court of Appeals in such a state that tbe litigation might be ended by tbe judgment of that Court, tbe jury was. directed to include in their assessment of damages, all claimed by plaintiff on bis proof, to wit: the'tax cost and counsel fee — these amounts, one hundred and twenty-five dollars and sixty-four cents, and one hundred dollars, constituting the sum of two hundred and twenty-five dollars and sixty-four cents. For this sum the verdict was rendered. It may be proper to observe that complainant set up title to the slave under the will of her father; and it was alleged, and seemed to be conceded, that though no reasons were assigned in the order dismissing the bill, it proceeded on the ground that the marital rights had attached, &c.
    The defendants appealed, and now renewed their motion for a non-suit or new trial.
    Arthur, for appellant.
    The bond is void: the Commissioner exceeded his powers in requiring it.
    1. The powers of the Commissioner to grant injunctions are conferred by Act of Assembly, and there is no power given to require bond of plaintiffs, except where judgments at law are enjoined. A. A. 1721, 1 Brev. Dig., 200 ; A. A. 1784, Id. 203; A. A. 1791, Id. 205, 207; A. A. 1808, Id. 212; A. A. 1734, 7 Stat. 189; A. A. 1784, Id. 209, 279; A. A. 1825, Id. 330; A. A. 1840, 11 Stat. 108, sect. 5, 7, 8, 13, 17.
    2. Where Commissioner exceeds his powers in requiring bonds, they are held void. Norris vs. Williams, 8 Eich. 58; Commissioner vs. Phillips, et al., 2 Hill, 631; Aldrich vs. Kirie-land, 8 Eich. 348.
    If bond is valid for the taxed costs, plaintiff’s right of action had not accrued when suit was brought. If the bond is analogous to a trover bond under A. A. 1827, plaintiff must show illegal conduct to recover more. Brown vs. Spann, 3 Hill, 324; DeHay ads. Ferguson & Dangerfield, 2 McM. 228.
    Counsel fees should not have been allowed. DeHay ads. 
      Ferguson & Dangerfielcl, 2 McM. 228; Glenn ads. Jeter, 9 Eicb. 374, and cases there cited; Gadsden vs. Bank of Georgetown, 5 Eicb. 336.
    
      Dawkins, Gadberry, contra.
   Tbe opinion of tbe Court was delivered by

MuNro, J.

It bas been repeatedly adjudged by tbis Court) as also by tbe Court of Equity, tbat under tbe powers conferred by the eighth section of tbe Act of 1840, (11 Stat. 110,) upon Masters and Commissioners in Equity, to grant injunctions, both special and common, in conformity to tbe rules and practice of tbe Court, ” tbat they also possess tbe power, as incidental thereto, of compelling a defendant to give security to abide tbe order of injunction, for tbe forthcoming of tbe property in litigation. See Ellis vs. Commander, 1 Strob. Eq. 188; Norris vs. Williams, 8 Rich. 58; Aldrich vs. Kirkland, Ibid, 349.

Tbe only instance, however, in which a Court of Equity bas ever required a party complainant applying for an injunction to give security, bas been where tbe application was made by a party seeking relief from a verdict, or judgment at law.

Upon applications of tbis bort, it was. formerly tbe practice of tbat tribunal, before granting tbe injunction, to require tbe complainant, who was tbe defendant in tbe action at law, to deposit a sum equal to tbe amount of tbe verdict, or judgment.

Tbe practice of requiring a deposit in such cases, having been found to be attended with much inconvenience to suitors, tbe legislature, with tbe view of remedying tbis inconvenience, in tbe year 1784, (see 7 Stat. 209,) passed an Act, requiring tbe party applying for such injunction, in lieu of tbe deposit, “ to give bond in such sum, and in such condition as tbe Court shall direct.”

From that period, down to tbe present time, it is believed that tbe practice of that Court in granting injunctions against proceedings at law, has been in strict conformity with tbe requirements of tbis statute.

Prior to tbe year 1840, tbe power of granting sucb injunctions was vested exclusively in tbe Chancellors. In that year, however, tbe legislature, by tbe tenth section of tbe Act already referred to, thought proper to confer upon tbe Masters and Commissioners in Equity, concurrent authority with tbe Chancellors, upon condition, however, that before granting-such injunction, they should require tbe applicant to execute a bond as required by law in sucb case.

Erom tbis brief examination into tbe authority of Masters and Commissioners, to grant injunctions, as also tbe mode and manner of exercising it, whether as prescribed by legislative enactment, or by tbe rules and practice of tbe Court of Equity; it is manifest, that in no case, except where tbe application for an injunction, is for stay of proceedings in any action, or upon any judgment, or execution at law,” has a Commissioner authority to require of tbe party making tbe application a bond or other security, preliminary to granting sucb injunction ; tbis being tbe case then, tbe conclusion is irresistible, that so much of tbe order made by tbe Commissioner, as required tbe defendant, Martin, tbe prochien amie of tbe complainant in tbe suit in Equity, to enter into bond, in tbe condition therein recited, was wholly unauthorized, and without even tbe semblance of legal authority to sustain it. We are therefore satisfied that tbe defendant’s ground for a non-suit is well taken, and that their motion must be granted, which is accordingly ordered.

O’Nball and WhitNER, JJ., concurred.

Motion granted.  