Lockwood v. Saffold , 1 Ga. 72 ( 1846 )

By the Court

Warner, Judge.

This was an action instituted on an injunction bond by Saffold, the defendant in error, against Lockwood, the plaintiff in error, as the security for one Christopher Keenan. By the 3d section of the Act of 16th December, 1811, (Prin. Dig. 437,) it is declared : “ No injunction shall be sanctioned or granted by any judge of the superior courts of this State, until the party requiring the same shall have previously given to the party against whom such injunction is to operate, by application to the clerk of the Superior Court for that purpose, a bond with good and ample security for the eventual condemnation money, together with all further costs.” The bond in question was taken in accordance with the requisitions of the above statute. On the trial, the point was made, as to what should constitute the legal evidence of the eventual condemnation money, in a suit on an injunction bond. We are of the opinion “ the eventual condemnation money,” as contemplated by the legislature, is such only as may be ultimately fixed and settled by the judgment or decree of the court, and that such judgment or decree affords the only legal evidence of the measure of damages to be recovered in a suit on the bond. The Judiciary Act of 1799, providing for appeals, requires the party appealing to give security for the eventual condemnation money, the uniform construction given to the terms, “ eventual condemnation money,” in that statute, has been, to make the security on appeal, bound for the amount of the judgment rendered, on the appeal trial. Such being the practical construction given to the words of the Judiciary Act of 1799, at the time of the enactment of the statute of 1811, it is quite reasonable to conclude the legislature intended the words “ eventual condemnation money,” in the latter Act, should receive the same construction as in the former. The term “ condemnation” is defined by Bouvier, in his Law Dictionary, 295, to be “ a sentence, or judgment, which condemns some one to do, to give, or to pay something; or which declares that his claim or pretensions are unfounded.” “ Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record.” — 3d Bl. Com., 395. The “ eventual condemnation money,” then, is that which the law sentences the party to pay ; expressed by the judgment of the court, the legitimate organ of the law. The record in this case shows, the parties submitted the matter in dispute between them to arbitrators, who made an award, which was, in our opinion equivalent to the verdict of a jury. Upon this award, the judgment of the court was pronounced in the following words : “ It appearing to the court that a rule of reference was entered into by the parties the last term of this court in this cause, and it further appearing that the arbitrators therein mentioned met in pursuance thereof, who, after due deliberation and investigation of all the matters submitted to them, awarded to the defendant Seaborn J. Saffold the books of accounts, and notes to the late firm of Saffold and Keenan, and the sum of one hundred and thirty-nine dollars in addition, which award is now here in court. It is therefore ordered, considered and adjudged, by the court, that said award be now made the judgment of the court, and entered of record accordingly: and that execution do issue for the amount so awarded against the principal and his security on injunction.” The judgment of the court (the organ of the law) sentences, or condemns, if you please, that Keenan should pay to Saffold, in addition to the delivery to him of the books of accounts, and notes, the sum of one hundred and twenty-nine dollars, and that execution do issue for the amount so given against the principal and his security on injunction bond. From what we have said, it follows, as a legal consequence, this judgment of the court must be taken as the only evidence of the eventual condemnation money in this cause. If we allow ourselves to go behind the judgment for evidence of the eventual condemnation money, where are we to stop ? We think the only safe rule is, to be governed by the judgment alone, in ascertaining what is the eventual condemnation money in a cause. We are therefore of the opinion the court below erred in permitting the mortgage fi. fas. mentioned in the record, to be read in evidence to the jury as evidence of the eventual condemnation money on the trial of this case. The judgment of the court below must therefore be reversed, and a new trial granted.