
    V. D. V. Jamison, Commissioner, vs. William Knotts. The Same vs. Thomas B. Tyler.
    
      Injunction Bond — Construction—Injunction.
    On a bill in Equity for foreclosure, it was ordered, “that the defendant be enjoined from removing the negroes, (naming them,) and that he do enter into bond with good security, in the sum of one' thousand five hundred dollars, for the forthcoming of the said negroes to abide the further order of the Court.” The condition of the bond was for the appearance of the defendant at the next term of the Court, to answer to a bill of complaint — not stating the names of the parties — and that he “ do in the meantime desist from removing or disposing of certain negroes (naming the same negroes,) until a further order of the said Court shall be made respecting the same ; then this obligation to be void.” Held, that the bond must be read as part of the proceedings in Equity, and that so reading it, it was not void for uncertainty.
    That the condition of the bond was in conformity with the order.
    That the condition of the bond was not limited in point of time, to a removal before the next term of the Court, or the making of an order. That an order for sale of the negroes, and their non-production to meet that order, was a breach of the condition.
    That the onus was on defendants to show that the decree for foreclosure was paid.
    That the injunction continued of force until dissolved by order of the Court.
    BEFORE O’NEALL, J., AT ORANGEBURG, SPRING TERM, 1859.
    The report of his Honor, tbe presiding Judge, is as follows:
    “ These \yere actions on a bond executed by Joshua Tyler and tbe defendants, taken under the Commissioner’s order in the case in Equity, to foreclose a mortgage of B. E. Simmons vs. Joshua Tyler, enjoining the removal of tbe mortgaged negroes, Hetty, Ellen and Louisa, from the State, and requiring tbe defendant to enter into bond and mortgage in tbe sum of one thousand five hundred dollars, for the forthcoming of said negroes, to abide the further order of the Court.
    “ IJnder this order the bond in suit was given. It is conditioned for the appearance of Joshua Tyler at the Court of Equity for Orangeburg District, on the first Monday of February, then next ensuing the date of the bond, (February, 1856,) to answer to a bill of complaint against him, ‘and do, in the meantime, desist from removing or disposing of certain negroes, viz: Hetty, Ellen and Louisa, until a further order of the said Court shall be made respecting the same.’
    “The slaves-were in Orangeburg District at and after the sitting of'the Court of Equity, in February, 1857. Subsequent to that time, the defendant, Joshua Tyler, removed himself and the slaves to Alabama.
    “At February Term, 1857, a decree was.made in the case of Simmons vs. Tyler, directing the defendant to .pay the complainant one thousand five hundred and thirty-eight dollars and eigh'ty-one cents, with interest from 23d February, 1857, and for its payment that the Commissioner sell the negroes Hetty, Ellen and Louisa. The Commissioner was unable to execute the decree, the negroes having been eloigned very soon after the decree.
    “ The defendant, Knotts, was informed on the day that the decree was. delivered, and was advised of the fact, that." the negroes were ordered to be sold; he admitted the negroes were then in Lexington District.
    “The proceedings in the Court of Equity were given in evidence.' I send up copies of the bill, the order of the Commissioner, condition of the bond, the Commissioner’s report, and the decree.
    
    
      “ A motion was made for a nonsuit on the six grounds set down in the grounds of appeal, which I overruled.
    “ I thought the bond must be construed in connection with the order and the proceedings in Equity. I did not think that tbe negroes being in Orangeburg at the time of the sitting of the Court of Equity for Orangeburg District was any compliance with the bond, which was substantially a bond for the forthcoming of the slaves to meet the decree of the Court.
    " The jury were so instructed. They found for the plaintiff.
    The defendants appealed, and now renewed their motions for nonsuit on the following grounds:
    1. Because the bond on which the actions were brought is void for uncertainty; in that, 1st, No case is stated in which it was given ; 2d, No person is named for whose benefit it was given; and 3d, The negro slaves mentioned therein are not sufficiently described for identification.
    2. Because the bond did not conform to the order under which the same was taken.
    
      8. Because the condition of the bond was, by its terms, limited in extent of time to the term of the Court of Equity, which was to be holden on the first Monday of February next ensuing, or to the time of the making of a further order of said Court respecting the slaves mentioned, so that a removal of the slaves prior to the said Term, or the making of such order, was necessary to constitute a breach of the bond, and no such removal was proved.
    
      4. Because, even if the bond in question was properly construed to be a forthcoming bond, there could be no legal evidence of a breach of its condition without a previous order of the Court of Equity to deliver the slaves either to the plaintiff, Simmons, or to the Commissioner; and no such order was in evidence, nor was such order, in fact, made.
    ■ 5. Because there was no evidence that the money decree against Joshua Tyler has not been paid.
    6. Because the injunction, under which, the bond in question was taken, continued of force only until the next sitting of the Court, and no order was afterwards made for the forthcoming of the slaves.
    Failing in the motion for nonsuit, then the defendants moved for a new trial on the ground staken for nonsuit, and on the following additional grounds:
    1. Because his Honor erred in ruling that the bond was to be considered and construed, even as against the sureties, in connection with all the proceedings in Equity, in the case of B. F. Simmons vs. Joshua Tyler, to which case these defendants were not parties, and there was no reference thereto in the bond.
    
      2. Because it was in evidence that the negro slaves mentioned in the bond were in the State, and in Orangeburg District for some time after the sitting of the Court, and after the making of a “further order” respecting the slaves men-„ tioned, which was a compliance with the condition of the bond.
    
      Huston, Bellinger, for appellants,
    cited Aldrich vs. Kirkland, 6 Rich. 834; 8 Rich. 849; Grey vs. Gidiere, 7 Rich. 171; Tryon vs. Robinson, 10 Rich. 160 ; Grey vs. Toomer, 5 Rich. 263; Gadsden vs. Bank, 5 Rich. 336; Barker vs. Bank, 5 How. Miss. 566 ; Bern vs. Heath, 12 How. 168; Lockwood vs. Soffold, 1 Nelly, 97; Beams Ne Exeat, 69 ; Saunders vs. Hughes, 2 Bail. 512; Gyles vs. Volk, 2 Sp. 460; 3 Dan. Oh. Pr. 1937; Bank vs. Lesesne, 1 Rice Dig. 142 (24); Trover Bond, A. A. 1839, p. 76, Sec. xx.; Ellis vs. Commander, 1 Stro. Eq. 189 ; (Law Court will look into the proceedings in Equity;) Norris vs. Cobb, 8 Rich. 58, 66..
    
      Glover, contra,
    cited Anderson vs. Foster, 2 Bail. 501.
    
      
      
         The following are copies of the proceedings, except the bill:
      COMMISSIONER’S ORDER.
      In Equity — B. F. Simmons vs. Joshua Tyler.
      Hearing the hill and answer, and the evidence, it is ordered that the defendant be enjoined from removing the negro,es Hetty Ellen and Louisa, from the above State: And that he do enter into bond, with good surety, in the sum of fifteen hundred dollars, for the forthcoming of said negroes, to abide the further order of the Court.
      
      (Signed) V. D. ,V. JAMISON, Com’r.
      
      Feb. 29, 1856.
      ' CONDITION OF BOND.
      The condition of the above obligation is such, that if the above bound Joshua Tyler do and shall appear before the Justices of the Court of Equity, to be holden at Orangeburg on the first Monday of February next, to answer to a-bill of complaint filed against him, and do in the meantime desist from removing or disposing of certain negroes, vis: Hetty, Ellen and Louisa, until a further order of the said Court shall be made respecting the same, then this obligation to be void, or otherwise to remain in full force and virtue.
      DECRETAL ORDER.
      In Equity — Benjamin F. Simmons vs. Joshua Tyler.
      The Commissioner having submitted his report upon the matters of account in case: On motion of Glover, Ellis & Brewster, complainant’s solicitors, it is ordered that the same be confirmed. It is further ordered, That unless the defendant, Joshua Tylfer, do pay to the said Benjamim F. Simmons the sum of thirteen hundred and thirty-eight dollars and eighty-one cents, with interest from 23d February, 1857, that the Commissioner of this Court do, after legal notice, sell the negroes Hetty, Ellen and Louisa, with any increase of the females since the execution of said mortgage, on the sale-day of April next, or the next convenient sale-day thereafter, for cash ; and after deducting the cost of these proceedings, he do, from said sales, pay and satisfy complainant’s claim, and if any amount be remaining after said payment, that the same be held subject to the further order of this Court. •
      Finally, it is ordered, That the Commissioner do make his report of sales to this Court at its next sitting.
      (Signed) F. H. WARDLAW.
      Feb’y 24, 1857. ■
      Commissioner’s Report ascertained the sum of thirteen hundred and thirty-eight dollars and eigh.ty-one cents to be tbe amount due by defendant to complainant, for tbe rent of tbe plantation set forth in tbe pleadings.
      COMMISSIONER’S REPORT OF RESULT.
      
        South Carolina, Orangeburg District — In Equity.
      
      B. F. SIMMONS vs. JOSHUA TYLER.
      BILL TO FORECLOSE MORTGAGE, INJUNCTION AND RELIEF.
      
        To the Honorable the Chancellors of the said State:
      
      In pursuance of an order made in tbe above stated case, whereby tbe Commissioner of this Court was required to sell certain mortgaged slaves, to wit: Hetty, Ellen and Louisa, to satisfy tbe demand of tbe complainant, established by the decree of this Court, tbe Commissioner advertised to sell the same on tbe sale’s-day of April last, when it came to the knowledge of tbe Commissioner that tbe aforesaid negroes had been removed from this State, as it was said, by the defendant, Joshua Tyler.
      All of which is respectfully submitted.
      ■ Y. D. Y. JAMISON, Com’r.
      
      May 1, 185V.
    
   The opinion of the Court was delivered by

O’Neall, J.

The various grounds, perhaps, deserve to receive separate answers from the Court; and so they will be considered.

1. The bond is first objected to as void for uncertainty. It is enough to say, that the bond must be read, as part of the» proceedings, in the case of Simmons vs. Tyler, in the Court of Equity of Orangeburg District. When thus read, all the uncertáinty vanishes; and it becomes light as day, what was intended by the obligor and obligee.

2. Non-conformity of the bond to the order made by the Commissioner, in the very case to which I have alluded, is the next exception. I think there is nothing in that objection. For the order enjoins the defendant from removing the negroes, Hetty, Ellen, and Louisa, from the State, and requires him to enter into bond with good surety, in the sum of J>1500 for the forthcoming of said negroes to abide the further order of the Court. The bond is conditioned for the defendant’s appearance at the'Court of Equity for Orangeburg District, to answer to a bill of complaint filed against him, and in the meantime to desist from removing or disposing .of said negroes, until a further order of the said Court shall be made respecting the same. This condition is really for what the order required. He was enjoined not to remove the negroes from the State, and to have them forthcoming to abide the further order of the Court. The bond, by its condition, requires him not to remove or dispose of the negroes until a further order of the Court is made respecting the same. That is in exact compliance with the injunction not to remove, and the balance of the order to have them forthcoming to abide the further order of the Court. For if he cannot remove, or dispose of them, until a further order of the Court, it is exactly equivalent to have them forthcoming; for they must then be within the jurisdiction of the Court.

3. It does seem strange to me how the condition can be construed to mean, that if .the negroes were within Orange-burg District at the rendition of the decree, the condition is complied with. It is-true, the condition directs 1st, that the defendant shall appear at the Court of Equity for Orangeburg, on the first Monday in February. That condition is I have no doubt bad, but as decided in Haile vs. Miller, that bad condition does not affect the residue of the condition. It is only kept in the condition to enable us to read and understand the residue, "in the meantime the defendant is to desist from removing or disposing of the negroes, until a further order of the Court is made respecting them.” To say that that means the negroes shall not be removed or disposed of until the first Monday of February, would be literally “ hceret in Hiera, hceret in cortice." For tbe Court of Equity for Orangeburg for' some cause was postponed until the fourth Monday in February. Surely the condition lasted that long, and then the. whole term is as one day, and the decree made within it, directing the sale, would certainly be “the further order of the Court.” But it is unnecessary to pursue that notion further. For the true reading of the condition is that he would not remove or dispose of the negroes .until the further order of the Court. For, until then, he was under the injunction.

4. The decree of the Court of Equity directing the sale of the negroes to foreclose the mortgage by the Commissioner, and their non-production to meet that order, is a breach of the condition.

5. The decree, if paid, ought to have been so shown by the defendants.

6. The injunction continued of force until dissolved. That has never been done.

The grounds for new trial have been considered in the grounds for nonsuit, and need no further answer.

The motions for nonsuit and new trial are dismissed.

G-lover and Munro, JJ., concurred.

Motion dismissed.  