
    A. O. Norris, Commissioner in Equity, vs. A. B. Cobb, Josiah W. Cobb, and W. A. Williams.
    When an action is Brought upon an injunction Bond, the law court may look into the proceedings in equity which led to the giving of the bond, in order to determine its validity.
    The commissioner may grant a special injunction requiring security for the forthcoming of property, which is the subject of a Bill in equity.
    An order By the commissioner, that “a special writ of injunction do issue,” is too general, and void.
    Such a general order may be cured by the writ, if that state the matter specially; but then the writ must be a judicial act, and be signed by the commissioner himself.
    The commissioner has no authority to grant a special injunction requiring the defendant to give security, that he “will not waste the estate of his testator, now in his hands as executor, and will fully account for the same.”
    Failure to pay a mere money decree cannot be a breach of any bond which a commissioner may rightfully take under a special injunction.
    BEFORE WHITNER, J., AT ANDERSON, FALL TERM, 1854.
    This was an action of debt on an injunction bond. A. B. Cobb was the principal, and the other defendants his sureties. The bond was taken in the case of Parris vs. Gobi, to the report of which, in 5 Rich. Eq. 450, reference should be had for a full understanding of this case. In Parris vs. Cobb, the Commissioner, on December 17,1850, granted an order, as follows:
    “ On hearing the bill and affidavit, I am of opinion, that a special writ of injunction be issued. It is, therefore, ordered that a special writ of injunction do issue.” On the same day a writ of injunction, addressed “to all and singular, the sheriffs of the said state” was issued. This writ recited, “that the said A. B. Oobb, executor, is about to dispose of certain slaves of great value, which are claimed by the said complainants, •and otherwise waste the estate of the testator, which tends to the great prejudice and wrong of the said complainants.” Its mandatory part was, as follows:
    “ Therefore, in order to prevent this injustice, we do hereby command you that you do, without delay, cause the said Amaziah B. Cobb, personally to come before you, and give security, or sufficient bail, in the sum of thirty-five thousand dollars, that is to say, a bond in the sum of five thousand dollars, that he will not dispose of the slaves Caroline, Harriet and Ann, and their increase, or any or either of them, nor carry them beyond the jurisdiction of this Court, and a bond in the sum of thirty thousand dollars, that he will not waste the estate of the said Henry Parris, now in his hands as executor, and that he will fully account for the same. And in case he shall refuse to give such bond or bail, or security, then you are to commit him to prison, there to be kept in safe custody until he shall do it of his own accord.”
    Under this writ, on December 21, 1850, the bond sued on was taken. It was in the penalty of thirty thousand dollars, and its condition was, as follows:
    “ Now, the condition of the above obligation is such, that if the above bound Amaziah B. Cobb, executor, ‘ will not waste the estate of the said Henry Parris, now in his hands as executor, and will fully account for the same,’ and further stay and abide the judgment of the said Court in this behalf, then this obligation to be void and of none effect, or else to remain in full force and virtue.”
    On July 16, 1853, the commissioner submitted his report, showing that there was a balance due by the executor of over three thousand dollars. The report was confirmed in December, 1853, and it was to recover this amount that the action was brought. The grotfnds on which the defendants resisted a recovery will be understood from the report of his Honor, the presiding Judge, which is as follows:
    
      “ This action was brought to recover for an alleged breach of an injunction bond. The first named defendant was principal, and the other defendants sureties. The record of a case in equity, William Parris and James Hichey and wife vs. Amaziah B. Gobi and others, constituted the principal evidence. The plaintiff will furnish, therefore, as part of his printed brief, extracts of so much of the papers as may be necessary to a full understanding of the points raised, especially the reports of the commissioner, the order for injunction, writ and bond taken on the arrest of defendant.
    “ The validity of these proceedings was contested by defendants’ counsel, on several grounds. There was no proof of any order from Chancery directing suit on this bond. There was proof that the name of the commissioner to the writ of injunction was signed by another person, though at his request, as he was called away from his office whilst it was in the course of preparation. The deputy sheriff who made the arrest and witnessed the execution of the bond, was of opinion the bond was not read over to or by the surety, Williams. The decree in Chancery confirming the report of the commissioner in equity, may perhaps be sufficiently referred to in a recent volume of reports. A fi. fa. for amount of decree and costs was lodged 9th February, 1854, and returned 10th February, 1854, ‘no property to be found.’ Amaziah B. Cobb has resided in the district from day of arrest until the day of this trial. The defendants, J. W. Cobb and W. A. Williams, were not made parties to the proceedings in equity. After the argument of counsel had been heard on both sides, my views on the legal points raised by defendants were stated; ■ and on each favorable to the plaintiff. I was not satisfied that the evidence of a breach of the bond was sufficient to entitle the plaintiff to recover against W. A. Williams, the avowed object of pursuit in this case. This was not an undertaking to pay a debt incurred by the principal to testator, Henry Parris, in his lifetime; or to pay any decree that m¿ght be rendered against him, or to pay for any waste of the estate committed before thé bill was filed. With the view of ending the litigation, I would gladly have taken a verdict for the sums claimed, but the account stated so commingled the indebtedness and liability of the principal, as to render it difficult and'impracticable to refer them to the terms of the obligation. Entertaining these views, and lest the plaintiff might be prejudiced by a verdict, if other proofs could be had, in reference to a waste of the estate, I intimated, if counsel preferred, they might submit to a non-suit, with leave to move the Court of Appeals to set it aside. This was acquiesced in, and a nonsuit was ordered, because there was not sufficient evidence of a breach of the bond. So much seems necessary, in reply to the eleventh ground of appeal.”
    The plaintiff appealed, and now moved this Court to set aside the nonsuit, and for a new trial, on the grounds,
    1. Because (it is respectfully submitted) the action was against A. B. Cobb, as well as his sureties, J. W. Cobb and W. A. Williams, and the plaintiff was certainly entitled to a verdict against him, even if the numerous defences insisted on for the sureties were well-founded in law.
    2. Because his Honor held that the condition of the injunction bond of the defendants was not broken by the failure of A. B. Cobb to pay the decree in equity, although the condition of the bond was “ that the said A. B. Cobb will not waste the estate of the said Henry Parris, now in his hands as executor, and will fully account for the same, and further stay and abide the judgment of the said Court in this behalf,” &c.
    3. Because his Honor, the presiding judge, held, that the defendants were not liable, on the injunction bond sued upon, for a&y waste of the estate of Henry Parris, deceased, committed by the executor, A. B. Cobb, anterior to the date of the injunction.
    4. Because his Honor held that the statement of A- B. Cobb, in his answer in the equity case, that the negroes ascertained by the decree in that case to be of the estate of Henry Parris, were sold by him, claiming them as his own, anterior to the injunction bond, was conclusive evidence that the waste which he had committed as executor, was anterior to the time when the sureties became liable by signing the bond.
    5. Because his Honor held the defendants were not liable, under the terms of the-bond, for the money decree which the Court of Equity had pronounced against A. B. Cobb, the executor, although that money decree was the result of an accounting of the liability of A. |>. Cobb as executor.
    6. Because the record in the equity case, in which the injunction was issued, shows, conclusively, that A. B. Cobb was charged, as executor, with certain negroes and property, as the estate of Ms testator, Henry Parris, deceased, and the money decree was only rendered as a substitute for the property, and as a measure of the extent of his liability.
    ’ 7. Because the Court of Equity did not ratify the sale of the negroes said to have been made by A. B. Cobb, when claiming them as his own, but charged him, as trustee for the next of kin, with the property ; and only measured his present liability by his admission of what he had sold them for previously.
    
      8. Because the mere statement of A. B. Cobb, that be had previously sold the negroes, was no evidence of the fact, which is denied. But if he had previously sold them, that is not the only evidence of waste, and time of its commission.
    9. Because his Honor held and ruled, that there was no evidence of waste subsequent to the 15th of October, in the year of our Lord one thousand eight hundred and fifty, the date of the injunction bond, notwithstanding the Court of Equity had held A. B. Cobb liable as executor, and had rendered a decree against him for the sum of three thousand one hundred and thirteen dollars and seventy-six cents, besides interest.
    10. Because waste may be committed by spending money, as well as by squandering property of an estate, and there was no evidence that the proceeds of the negroes were spent before the injunction bond was given.
    11. Because, in any view of the case, his Honor ought to have submitted the case to the jury upon the question, whether the waste was committed before or after the injunction bond was given.
    12. Because A. B. Cobb was executor of the will of Henry Parris, and trustee for his next of kin, as to the property not embraced within his will, and on this account the condition of the bond “not to waste the estate” of his testator, and to account therefor, was proper, and covers the money decree rendered in the Court of Equity against the executor.
    13. Because the ruling of his Honor was contrary to the law and evidence, and will operate, if not corrected, to do injustice to parties in interest, and to give A. B. Cobb the fruits of a well-concocted and deliberate fraud.
    
      MeQ-oiven, for the motion.
    It is sought to charge the sureties with the amount decreed for the value of the slaves sold by Cobb in 1848. The bond is that he will not waste the estate now in his hands. The money arising from the sale was then, at the date of the bond, December 21, 1850, in his hands. Such is the presumption of law and fact. He has not paid it under the decree. He has, therefore, wasted it. The negroes having been decreed to belong to the estate of the testator, the money arising from the sale was also part of the estate in the hands of the trustee.
    Cobb was an express trustee, and as such the Court of Equity had full power to require him to give bond not to waste the estate. The bond was given, and it is now sued on; and we have shown a devastavit since its date, to wit, the decree for the money and the return of nulla bona.
    
    But the bond requires him to fully account. How has he accounted? Surely the decree itself is not the account meant ? He must pay it.
    The question whether Cobb had wasted the estate after the date of the bond, was one of fact, and should have been submitted to the jury. If he had the money, or securities for its payment, at the date of the bond, then the waste has been since. The mere change of the property into money or notes was not waste. The money or -notes became impressed with the trusts — became part of the estate. For wasting that we complain. Wightman vs. Brown, 1 Des. 166; 1 Des. 167; 1 Yes. & B. 541; 8 Johns. R. 126; 2 Hill, 592.
    Then had the commissioner the right to require such a bond ? Contended that he had under the Act of 1840.
    The signing of the writ of injunction was a mere ministerial act; and the commissioner might give authority to another to sign it for him. 2 Mad. Ch. 183; 8 Bro. C. C. 218; 5 Yes. 91; 1 Yes. & B. 129.
    
      Vandiver, contra,
    cited 8 Danl. Ch. Pr. 1833. The order for a writ of injunction is void for indefiniteness. It should have specified for what it issued — stated what the defendant was required to do or not to do. The commissioner may grant orders conformably to the rules and practice of the Court. The practice is to specify what is to be done. This order specifies nothing, and is void.
    But the order authorises a writ of special injunction. If the order is good, the writ is void, for it is not a writ of special injunction. It is a writ of ne exeat regno. 3 Banl. Ch. Pr. 1942. A writ of injunction commands the party. This writ commands the sheriff. One is to the party, to do or not to do a specified thing — the other commands the sheriff to arrest the defendant* &c.' 2 Tidd. Pr. 1128; 1 Arch. Pr. 320; 2 Sellon, Pr. 61; 16 Eng. C. L. R. 244.
    Then as to the writ. It was not signed by the commissioner. If the commissioner has authority to appoint a deputy, it must be to do a mere ministerial act. As the order did not specify the terms, the writ in fixing them was judicial, and could not be signed by deputy. The directions as to what was to be done were judicial. But there are other objections to the plaintiff’s recovery. 1. The writ is void for not specifying what property was not to be wasted. 2. There is no order that the bond be put in suit. 3. No ea. sa. has been issued, and one should have issued before suit on bond. 4. No breach of the bond has been shown. No waste has been committed since the date of the bond. It was committed by the sale of the negroes two years before. 3 Danl. Oh. Pr. 1856, 1886, 1907-8. An injunction operates prospectively. It lies not to repair an injury already done. Here the object is to make the defendants liable for an act already done. It is an attempt by means of an injunction bond to secure a debt.
    
      Perry, in reply.
    Cobb was a trustee for the parties. They had the right to go into equity to remove him — to require him to give security to protect the property until the right could be determined.
    ■ Was there a breach of the bond? The sale not itself waste It was an act which justified the requiring the bond for the protection of the property. It showed that the estate was in danger. When the bond was given the estate consisted of money or notes. That is not forthcoming to satisfy the decree —it has been wasted. There is, therefore, a breach of the bond.
    Signing the writ of injunction was a ministerial act. But the commissioner afterwards recognized it, when he signed the sheriff’s return to the writ.
    The order for the writ must be understood to mean such writ as the bill prayed. The bill prayed for such a writ as was issued.
    “The estate of Henry Parris” are the terms used in the writ. That sufficiently specifies the property.
    Then as to the bond. Suppose the writ be void, is not the bond good as a voluntary one ?
    Failure to pay over the money is a breach of the bond. The onus of showing that it has not been wasted is on the defendants.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, it is necessary, before entering on the consideration of the merits, to consider a preliminary objection, that the Court of law cannot examine any of the proceedings had in equity, which lie behind the bond.

This is, to my mind, a strange proposition. The Court of Equity has no power to enforce this bond. Suit must be brought on it at law. Why? Is the mockery to be gone through, that the bond, when here presented, is to be pronounced legal, binding and proper, because it comes from another forum? Surely not. If it were so, it would make the Court of Equity not only supreme, and -compel the law Court to follow it, where the position of the two tribunals, and the laws are directly the reverse; but would also give a constructive effect to tbe bond not sanctioned by the Court of Equity. That Court has decided nothing touching the bond; the plaintiff has nob even the license of his own Court to sue the bond.

I would be as unwilling as any one to touch the jurisdiction of another tribunal. But I am not to be frightened from examining the validity of an instrument sought to be enforced in a law Court, because it may come from the Court of Equity.

Mere irregularities in proceedings in equity, as was decided in Harvey vs. Huggins, 2 Bail. 252, cannot be examined in a law Court.

But where, as in the Commissioner vs. Phillips, 2 Hill, 631, the commissioner exceeded his powers in the requirements of his order, and the writ issued under it, a bond is taken in conformity thereto, as was adjudged in that case, I would hold it to be taken by duress, and void at law. The opinion in that case, it ought to be remembered, was pronounced by our eminent Chancellor (Judge Harper), then a member of the Appeal bench. It cannot be supposed that he would have trenched upon a jurisdiction, of which he was as bright an ornament as ever adorned it in this state !

Having now prepared the way, I propose next to examine the proceedings under which this bond was taken. To do so satisfactorily, it is desirable to know what is an” injunction ? An “injunction maybe described to be a judicial process, whereby a party is required to do a particular thing, or to refrain from doing a particular thing.” 3 Dan’l. Chan. Prac. 1809. A special injunction is one that arises out of the special circumstances stated in the bill. That the commissioner may grant a special injunction, requiring security for the forthcoming of property which may be the subject of a bill in equity is settled by the opinion of the court in the case of Aldrich vs. Kirkland, decided in the Court of Errors at this term,'and by the case of Ellis vs. Commander, 1 Strob. Eq. 188.

The Commissioner in the case in hand, made an order, that “a special writ of injunction issue.” For what purpose, or commanding the party to do, or to refrain from doing, what particular thing ? No one can tell. Such an order is as void as a general search warrant. It is true, if the commissioner had sealed the writ, and it did not go beyond his authority, it might have cured the defect. But he did not, and it is now no more than the solicitor’s writ, and cannot help out the defective authority under which it issued.

The writ, however, goes entirely beyond the commissioner’s authority. For it requires in this behalf, that " the executor will not waste the estate of Henry Parris, now in his hands as executor, and that he will fully account for the same.” This is requiring the defendant to give surety for the payment of the eventual decree. This, Aldrich vs. Kirkland decided the commissioner had no power to require.

It would hence according to the case of the Commissioner vs. Phillips appear, that a bond taken under such proceedings would be taken without legal authority under color of process, and therefore by duress, and be void. But the bond went still further, and in express terms required the executor “ to stay and abide the judgment of the court.” As Judge Nott said in Livingston vs. Livingston, 2 Mill, 428, I have never seen such “ a tissue of irregularities:” and more than irregularities, such erroneous assumptions of powers and authorities.

But if the bond was freed from these fatal objections, I do not see how a breach of the condition is shown. The decree is a mere money decree, and according to Aldrich vs. Kirkland cannot be a legal breach of any bond, which the Commissioner could rightfully take under a writ of injunction issued by him.

These views sufficiently dispose of the case and show that the nonsuit was right as to all parties.

The motion is dismissed.

WITHERS, WhitNER, Glover, and Munro, JJ., concurred.

Wahdlaw, J.

In the case of Aldrich vs. Kirkland, decided last week in the Court of Errors, I endeavored to state tbe principles which I think are applicable to cases like this. Under those principles, I consider that this bond, which has been brought into the Court of Law by the proper officer of the Court of Equity, has been brought with the sanction of that Court, but still I cannot but admit, that if it was originally void, no subsequent recognition of it by others could give it validity against the supposed obligors. If it had been taken under a proper order, and the condition was merely “that Amaziah B. Cobb should not waste the estate of Henry Parris in his hands as executor,” I think I could reach a result favorable to the plaintiff. In such case, I would not venture to say that the Court of Equity could not order such a bond and direct the process which should be used in enforcing its order. I might see in the bill, and affidavit which accompanies it, a seeming distinction between that portion of the estate which had been “disposed of,” and that which was “in the hands” of the executor. But I would confine myself to the terms of the obligation, and remember that the estate of a testator consists of choses in action, as well as of tangible property — that the debts of the executor to the testator were part of the estate, and part which was in' the hands of the executor — that when the final decree had cancelled the deect to A. B. Cobb, the negroes contained in that deed were thereby in effect declared to have been the testator’s at his death; and when in lieu of surrendering them specifically, the executor was required to pay certain sums as the prices he had received for them, and to account generally, his sales were thereby confirmed, and he made debtor to the estate for those sums, as well as for anything that previously he owed the estate. The decree I would regard as a decision, that the sum finally ordered to be paid was then in the hands of the executor; and the return of nulla Iona on the ft. fa. against him, I would take as evidence of his subsequent devastavit.

But the order and condition are not such as I have supposed. First, The condition, “ further to stay and abide the judgment of the said Court in this behalf,” is unauthorised by the writ of injunction. Second, The condition, “fully to account for the same” [the estate], although conformable to the writ of injunction, is not authorised by the order, even if that order, to save it from indefiniteness, is referred to the bill. Third, The condition, “ not to waste the estate of the said Henry Parris now in his hands as executor,” is conformable to the writ of injunction, and to the prayer of the bill, but the writ of injunction itself is, I think, void; because in the mode which was adopted for issuing it, it was a judicial act, and was not passed upon by the commissioner himself. It is with great diffidence that I say anything concerning equity practice. I would recognize as proper any matter of practice which was approved by a Chancellor, where any such matter, sustained by the order of a commissioner, which was within the debateable limits of his power, and was not set aside by a chancellor, after opportunity for a motion to set it aside had been given. But I am obliged to reject, as the act of a judicial officer, that which was not done by himself, and which he could not depute to another. I do not intend to dispute that a commissioner might authorise a deputy to affix the seal of his office, even to sign his name to a writ. I will admit that a deputy might do anything which pertains merely to the duties of a register, where (as in Charleston), the commissioner’s duties are divided between a master and a register. But the objection here is that, in the mode which was adopted, the writ was not a mere execution of an order, such as a solicitor or register might prepare, under the directions given by the order, but was itself the initiative of various important matters of discretion, which had been mentioned in no previous proceeding. The order simply authorized a writ of special injunction to issue; the writ amplified and extended the order, so as to declare what should be enjoined, how obedience should be compelled, how many bonds should be taken, and in what penalty each should be. Who decided these grave matters ? They should, I suppose, have been settled in the order; they should, I am sure, not have been left to the discretion of the complainant’s solicitor, or of a deputy, appointed to execute the prescribed matter-of-course formalities in issuing a writ. As to all of them, except, perhaps, the purpose of the injunction, the bill is as silent as the order; and after all the assistance which practice might be supposed to give in eking out the directions'given by what precedes, it is plain that much must still have been left to the good pleasure of him who drew the writ.

I regard the writ then as the mere act of the .solicitor, having no more authority than if no order whatever had preceded it. The bond taken under it was obtained by duress, and, in my opinion, is wholly void.

Motion dismissed.  