#### Thomas Napier *vs.*J. J. Gidiere, Executor.

Bonds taken under the order of tlie Court, pending litigation, for security of the rights of the litigants, as creatures of the Court are within its judicial control, and should not be employed vexatiously.

On such a bond suit at law had been brought by leave of the Court, and plaintiff was nonsuited on the merits, and the nonsuit was sustained by the Court of Appeals. Application for leave to bring a new suit on the bond was refused — the applicant not showing that he could now make a different case from that made on the former trial.

The Court will not order such a bond to be cancelled on the mere motion of the obligors.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

A report of the case was made by his Honor, the presiding Chancellor, which is as follows:

“ This was a motion on the part of the plaintiff, that the bond of the defendant should be delivered to him, to the end that he might institute a suit on said bond, against Gidiere and his sureties, in the Court of Law. The plaintiff had formerly brought a suit on said bond, and was nonsuited, on the ground that no process of attachment had been lodged in the sheriff’s office. The plaintiff appealed, and moved to set aside the verdict. The appeal was dismissed, and the verdict stood. The plaintiff now moved that the bond be delivered up to him, with leave to bring another action at Law upon said bond; he offering, as a condition precedent, to pay the costs of the former suit.

“ The motion was *refused;*unless the plaintiff could show, that he could make a different case from that made in the former trial. The plaintiff made no pretence that he could adduce any additional evidence. It was contended, that the nonsuit concluded nothing, and that the plaintiff had a right *255to sue again. Though the nonsuit could not operate as a bar, or an estoppel, the decision in the former trial, confirmed by the decision of the Law Court of Appeals, settled this, that the plaintiff could not recover on the proof then made; and unless he could satisfactorily show, that he could supply the defects in the testimony, on which the former action failed, he ought not again he allowed to harrass the same Court and the parties with another action. Th'e motion was refused.

“ A motion was then submitted on the part of the defendants, that the bond be delivered up to be cancelled. This motion was granted, and an order to that effect was passed. As there was no prospect that there ever could be a recovery upon the bond, I thought it was time that this expensive and protracted litigation should be brought to a close.”

The plaintiff appealed from the refusal to grant his order, and also from the order, directing the bond of G-idiere to be delivered up to be cancelled, on the grounds:

1. That after the Court of Appeals in Equity had directed a suit at Law to try the liability of the defendant on his bon'd, the plaintiff was entitled to a verdict of the jury as to that issue.

2. That the plaintiff in nonsuit is not compelled to adduce additional testimony, (before suit,) to enable him to bring another action; which is proper in those cases where the verdict of the jury is to be reviewed, additional testimony haying come to light since the verdict, but that a judgment in nonsuit is not the same as a verdict of the jury, and cannot decide the issue of liability or not.

8. That a nonsuit is no bar or estoppel to another action on the bond, and that upon the terms of his paying the costs of the nonsuit, the plaintiff is entitled to proceed again.

*2564. That the question, as to whether the plaintiff could ever recover on the bond, was one of Law, and not of equity — to be decided by a jury on the testimony then adduced.

5. That the order granted was contrary to Law and Equity.

*Whaley,*for appellant.

*Petigru, Memminger,*contra.

The opinion of the Court was delivered by

WaRDLaw, Ch.

This case in various stages has been frequently considered in the Courts of Law and Equity. Spears Eq. 215; 3 Strob. Eq. 192; 4 Strob. 438; 5 Rich. 386; 7 Rich. 168. And this appeal involves the question, whether the Court of Law shall be further vexed with the plaintiff’s clamor.

The Chancellor on circuit refused the plaintiff’s motion, that the bond of defendant be delivered to plaintiff, with leave to bring another suit at law thereupon. Plaintiff had instituted, with leave of this Court, one suit at law upon this bond, in which he was nonsuited, by the judgment of the Circuit Court and the Court of Appeals, because the facts proved by him were insufficient in law to authorize a recovery. Leave to prosecute his claims further on the bond- was offered to him, if he could show that he could vary substantially the case once presented and adjudged, but he did not profess that he could adduce any additional evidence.

The grounds of appeal to some extent are taken in misconception of the principles on which the Chancellor acted. He did not dispute the legal propositions, that a nonsuit is not ordinarily a bar to another action in the same right, and that a plaintiff, who has control of the instrument which is the cause of action, is not bound, as a condition precedent to renewed *257clamor after nonsuit, to exhibit additional evidence. He merely decided, that bonds taken under the order of this Court, pending litigation, for the security of the rights of the litigants, as creatures of the Court are within its judicial control; and that they should not he employed vexatiously.

We concur in these views of the Chancellor. Such bonds are not demandable as of right by any party, and in the administration of the jurisdiction of the Court, they are granted in judicial discretion, in each case, according to its exigency, to preserve or protect the rights of the parties. The first order in this case was, that the defendant, as executor of Descou-dres, should pay into Court, before final judgment, a certain sum of money admitted to he in his hands as assets of his testator. Surely this order was administrative and discretionary, for no plaintiff can demand execution until he has obtained judgment: and the substituted order, that defendant give bonds to pay the money in his hands within ten days after the judgment of the Court of Appeals on his appeal, or render his person under -the attachment which plaintiff had issued upon the former order, must be of the same administrative and discretionary character. The bond executed in pursuance of the order, must follow the nature of the order, and be equally liable to revocation and control as the order itself. A security granted on a particular exigency, does not necessarily survive the occasion. The mode adopted by the plaintiff' for the enforcement of the former order, was an attachment against the person of defendant; probably adopted in prudent foresight, that *afi.fa.*would only produce the sheriff’s return of *nulla tona;*and the latter order secured to the plaintiff the same remedy. It was his fault or his choice to withdraw from the sheriff the process authorizing arrest of defendant’s body, and not to renew such process. The Judges of the Court of Law, to which tribunal the plaintiff was once remitted by our permission, have solemnly determined that the plaintiff could not under the circumstances of the case recover, according to the *258law of the land; and there is no propriety in asking them for a renewed expression of their judgment on the same state of facts. It is urged by the plaintiff that a verdict of a jury is the only final determination of a cause at law, but we suppose that the maxim is still of force, *ad questionem facti, non respondent judices, ad questionem legis non respondent juratores.*The Judges inform us, in the last report of this case, (7 Rich. 168,) that in the existing and apparent state of facts, the plaintiff cannot get to the jury, and must be nonsuited by the Court. We look to the Judges for the establishment of doctrine, and to the jury for the finding of *facts;*and when we are advertised that, upon a conceded state of facts, a plaintiff cannot recover in a co-ordinate tribunal, we should violate comity and good sense in permitting a new trial, if we have the discretion to refuse the application. The motion of the plaintiff for leave to sue again, admits our discretionary control over the bond by necessary implication. This might be *further*demonstrated by showing our control over *ne exeat*bonds, by taking forthcoming bonds in substitution, and by other analogous cases, but we consider that the doctrine of the decree needs no elaborate vindication. *Lattimer*vs. *Elgin,*4 Des. 26; *Mitchell*vs. *Bunch, 2*Paige, 606; *Jesup*vs. *Hill,*7 Paige, 95; *McNamara*vs. *Dwyer,*Ib. 239.

We prefer, however, the Circuit Chancellor concurring, to vacate the order, that the bond of Napier and his sureties be cancelled; and refusing the present application for new suit without showing of new evidence, to keep the obligation in the custody of the Court, to be used in an action at law, when the plaintiff may satisfy us that he can make a case in that Court substantially different from the case already determined. It is a grave thing to cancel a deed or obligation, the most solemn form of contract; and it is irregular in proceedure to order such cancellation on mere motion, without bill or petition, bringing all the parties in interest before the Court. Besides we cannot foresee, that the plaintiff may not, at some future time, present *259for adjudication, on the instrument of contract, a very different case from that -which is adjudicated. It is within the range of possibility, that he may establish, on satisfactory evidence, that, having an attachment in the sheriff’s office against Gridiere, the latter at all times refused to render himself in pursuance of the condition of his obligation. It is a fallacious argument for defendant, that as the sheriff being witness to the bond, must be always produced by plaintiff, and as the sheriff, the best witness, has testified that there was no attachment in his office when the defendant offered to render himself, there cannot be such change of circumstances as will justify the plaintiff’s recovery on the bond. The sheriff is no better witness than any other person; and it might be that the -sheriff, when made a witness in a new suit, should acknowledge mistake in his former testimony; or that other witnesses might overthrow his testi--, mony. Whatever doubts there may be as to the right of a party to assail the general character of his own witness offered from necessity, there can be no doubt that in such case he may prove by other witnesses a state of facts differing from the testimony of the indispensable witness.

It is ordered and decreed, from caution, that the order heretofore passed, granting leave to plaintiff to sue or continue suit at law on the bond of defendant, and requiring the Master of this Court to attend the Court of Law, and produce the bond, be recalled as to any further proceeding.

It is further ordered, that the order cancelling the bond of defendant and his sureties be annulled, and that said bond be retained within the custody of the Court, subject to its future order.

It is finally ordered, that the Circuit decree be modified as indicated in this judgment; and that in other particulars the decree be affirmed and the appeal dismissed.

Johnston, Dunkin and DaRGAN, CC., concurred.

*Decree modified.*