#### *B. F. Hunt, assignee, vs. William C. Smith et al.*

The court has no power, by interlocutory order, to grant an injunction to stay proceedings at law, either before or after judgment, without requiring the applicant to give bond and security or deposit the money.

On the 26th February, 1845, at Georgetown, B. F. Hunt presented a petition to his Honor, Chancellor Johnson, praying an order to the commissioner to sign a writ of injunction, to the following eifect.

“ The petition of B. F. Hunt, assignee of Charles T. Brown, sheweth that, on 2d February, 1832, this honorable court granted an injunction against Peter Cuttino and W. S. Smith, administrators of Savage Smith, restraining them from proceeding at law on the bond of the petitioner given to the commissioner of this court, until the further order of the court. A suit was then brought, in the name of the commissioner in equity. For the time being, proceedings were, accordingly, suspended. Since then, the said Cuttino and Smith died, and William C. Smith has administered *de bonis non,*and now represents the estate of Savage Smith, and a new suit has been commenced in the name of the present commissioner, so that the same suit in the same right has been again commenced, and the order *278for an injunction stands unreversed. Wherefore, your petitioner prays that the commissioner be ordered to sign the writ of injunction, pursuant to the original order, to be directed to the present commissioner and the present administrator of Savage Smith, to the same effect as the original order.”

The order referred to in the petition was as follows.

“It is ordered, that an injunction issue according to the prayer of the bill, and that all the proceedings in the action now pending at law on the bond of the complainant to Robert Heriot, commissioner, at the suit of Peter Cuttino and W. S. Smith, or either of them, be stayed till the further order of this court, with leave to the defendant to come in and file his answer, and move to set aside the injunction.

Henry W. DeSaussure.

*2d*February, ■ 1832.”

The application was resisted on the part of William C. Smith and others, on the ground that the injunction prayed for, in effect, by the petition, was different from that ordered by Chancellor DeSaussure thirteen years ago — and that, after so great a lapse of time, and the filing of the answer, it should not now be granted without looking into the merits of the case. This the Chancellor refused to do, and, overruling the objection, granted the order, in the following words.

*“ On motion of*Memminger and Jervey, *on*behalf *of*the complainant, ordered that the order of injunction formerly made against the former administrator of Savage Smith, be revived against *the*present administrator, and the commissioner do sign the writ accordingly.”

It was afterwards ascertained from the commissioner, by certificate after search, that there was no injunction bond to be found in the office, if any had ever been given — and a motion was made before his Honor at Charleston, that the order just before granted at Georgetown should be amended, so as to require security from the petitioner, in conformity to the provisions of the statute. This was refused, and his Honor’s decision in the above matter was appealed from for error—

1. In reviving an injunction formerly ordered, after so greiat a length of time, against new parties, without considering the merits of the petitioner’s case.

2. In not ordering bond and security, in conformity to the *279provisions of the statute regulating the granting of injunctions.

*Mitchell and Yeadon,*for the appellants.

*Petigru and*Memminger, contra.

*Curia, per*JohnstoN, Ch.

The statutory law applicable to the point made by this appeal, is contained in the Acts of 1721, 1734 and 1784. (7 Stat. 164, § 5 ; 188, § 15; 209, § 9.)

The first of these Acts, after prescribing the conditions upon which applications for injunctions shall be made, provides, that where the application is to stay, (of course by interlocutory order) suits before judgment, brought upon money demands secured by promissory note, bill of exchange, bond, single bill, or other specialty, or to stay execution after judgment for money, no injunction shall be granted until the sum of money so secured and sued for, or for which the judgment was given, be deposited in this court.

The next statute, after characterizing this requisition as too rigorous, enacts that defendants at law may be entitled to an injunction of the proceedings against them, upon giving security to the master oi register in chancery, not exceeding the *damages laid in the*declaration, to perform the order or decree of this court.

It would seenfthat this latter statute was supposed to be confined to proceedings prior to *verdict*and judgment, so that, as to the latter, the money must still be deposited, for the Act of 1784 provides as follows. “ Whereas the obliging a complainant, seeking relief from a verdict or judgment at law, to deposit the sum for which such *verdict or judgment*was obtained, before an injunction can issue to stay execution,” “ would be attended with much inconvenience,” &c. “ Be it therefore enacted, that a party applying for an injunction to stay proceedings in an action at law, or *judgment or*execution, or the levying of execution, shall be entitled to such injunction, on giving bond to the *plaintiff at law,*with security, to be approved by the master in chancery, for such sum, and with such condition, as the court shall direct,” &c,

It is very apparent that the latitude here given, as to the sum and condition of the bond, arose from the fact, that judgments and prior proceedings are all embraced together; and whereas, where the debt was ascertained by judgment, it would have been sufficient to require bond to secure that amount, no *280such definite direction could be given where *the suit was*still pending. But still the court has no power to dispense with bond and security, unless the money be deposited. Its only discretion is over the amount and condition of the bond; and in cases where judgment has not been obtained, the discretion, as to tfye amount, is merely to limit the penalty to the contract sued on, or extend it to the damages claimed.

In this case, an injunction had been ordered, but no bond was given. On the further application for an order requiring the master to sign the writ, we are of opinion that it should have been refused, except upon the applicant’s complying with the law, by giving'bond with' sufficient security; and it is ordered that the Chancellor’s decision on this point be reversed, and his order set aside.

Johnson and Harper, CC. concurred.