#### *The Treasurers vs. W. K. Clowuey.*

*Before*Gantt, J., *Union, Fall*Term, 1835.

Judgments were obtained at law against Amelia A. S. O’ICief, as administratrix of Thomas O’Kief. Afterwards an action was brought on the administrasion bond, to which Jos. McJunldn and Shelton Swift were securities — and judgment thereon. Next *517Was filed a bill in Equity, to stay proceedings at law. A decretal order was 'obtained, allowing an injunction on giving bond, (see the order.) An appeal was taken from the decree made by the Court of Equity, which ended in a reversal of the decree and dismissal of the complainants bill. (These proceedings -will all be shown, I can only refer to them.) An action was then instituted on the bond taken by the Commissioner in Equity, under the decretal order, and a non-suit was ordered, on the ground'that the commissioner had taken a blank bond which created no responsibility. The present action was then brought on the bond of the commissioner, for his default in not having taken a sufficient bond. This mingled chain of litigation, involving both Law and Equity, took up much time and branched out into a variety of views, as will more distinctly appear by reference to the many grounds taken for an appeal. By the Act of 1791, Dec. 1st. Brev. 205, sec. 39, commissioners in Equity are required to give bond to answer for any misfeasance or default, in like manner as ordinaries by the Act of 1789 are made responsible in damages for their neglect. Before the Act of 1784, (see 1 Brev. 203, sec. 20,) a complainant seeking relief for a verdict or judgment at law, had to *deposit the swm*for which the verdict of judgment was had, before he could obtain an injunction, but the Act of 1784 allows an injunction, on a complainant swearing to the truth of the bill and *giving bond and secmily*to be approved by the master in chancery *for such swm and with such condition as the Cowrt shall direct.*A subsequent Act has invested the master with a power of granting injunctions, and the decretal order in the case before us was made by the commissioner, Mr Clowney.

. The bond and security required by the Act of 1784, must be such, that in the event of failure on the part of a complainant, the amount which had been recovered, should be secured by the bond. It is a substitute for die deposite of the money before required. It was contended that the act of the commissioner in this proceeding was altogether judicial, and created no responsibility. I thought otherwise. The granting the injunction was unquestionably a judicial act. The accompanying direction, that bond should be given, was no more than what the law required, and hot of a judicial character; and if it were to be so considered, still the taking a bond under the decretal order would be altogether a ministerial act, and the omission to take would be a default on the part of the commissioner, which would make him liable, and to the extent of what had been recovered.

The charge of the Court to the jury was, that the commissioner was liable for his default in not talcing the bond, and to the extent of the judgment — The jury found accordingly.

Defendant appeals. For non-suit.

1. Because the defendant, in doing the .act complained of by plaintiff in this case, acted in his judicial capacity, and is therefore not liable to a civil action.

2. Because the commissioner in Equity, on granting an injunction under the Act of ,1825, is not required by- law to take any bond.

3. Because the commissioner is not bound to take any bond in cases of injunction, under any statute of this State. The Act of 1784, prescribes that the bond shall be given to the plaintiff-; and the only duty required of the commissioner, is to approve the security. And the Act of 1791, requires tire bond to be given to the sheriff; and the commissioner is therefore not liable on this official bond, for misfeasance or default in his duty.

For a new trial.

1. Because the defendant is not liable to a greater extent than the value of the assets sof O’Kief’s estate, in the hands of the commissioner to be administered, which was *518$11,91 in the hundred dollars; the Court held, he was liable for the full amount of plaintiff’s debits against the estate of O’Kief.

2. Because defendant, if liable, is only liable for the costs in the injunction case, as the condition of the bond was, that the obligors should stand to, abide and perform the decree in Equity, which was, “ that the bill should be dismissed with costs.”

3. Because the Court should have instructed the jury, that if they should find, that the defendant, when taking the bond, really and in truth thought andhelieved that the bond, in the form it was taken, was legal and binding on the parties, then that would only constitute an error in judgment, for which he would not be liable.

4. Because the injunction bond, being filled up from the memoranda $500 and the date, and being signed, sealed and witnessed; and being filled before the trial, was a good and valid bond.

5. Because there was no writ of injunction actually sued out, and the plaintiff at law, in the suits intended to have been enjoined, were not legally restrained from proceeding at law, and suspended their proceedings from choice.

6. Because there was no injunction in existence, after the coming in of the demurrer, and plaintiffs might have proceeded at law.

*Curia, per*

Harper, J.,

My opinion will be expressed with reference to the fifth ground of appeal, “ because there was no writ of injunction sued out, and the. plaintiffs at law in the suits intended to have been enjoined, were not legally restrained from proceeding at law.”

The A. A. of 1784, under which the bond in question was given, provides, *“*and whereas, the obliging a complainant, seeking relief from a judgment or verdict at law, to deposit the sum for which such judgment or verdict was obtained, before an injunction to stay execution, although his prayer is manifestly founded in Equity, hath been and would be attended with much inconvenience to suitors, and in many instances, may amount to a denial ofjustice.” “ 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 malting oath or giving his affirmative (according to the form of his profession,) to the truth of his bill, and giving bond to the plaintiff at law, with security to be approved by the master in cjiancery, for such sum and with such condition as Hie Court shall direct.” &c.

Now, it is hardly necessary to say, that by the word injunction, is commonly meant the *writ*of injunction. “An injunction is a writ issuing by the order and under the seal of tlie Court of Equity.” Eden or Injunc. 1. “ An injunction is a remedial writ, in nature of a prohibition.” 2 Harr. Ch. 20. “ The writ of injunction is served by showing the original under seal, and delivered a true copy thereof, to the party himself.” Id. 267. The order of a chancellor for the granting of an injunction is not certainly of itself an injunction, nor does it restrain the party, unless the conditions upon which it was granted shall have been complied with, and the party notified that they have been complied with, by being served with the writ. The officer of the Court, however, is bound at his peril, to see that the conditions have been complied with, and a bond given conformable to law and the order of the Courtbefore issuing the writ. The Act ofthe commissioner in sealing and delivering the writ is certainly a mere ministerial act; and it does not in any degree alter the character of the act, that in order to its performance, he must incidentally exercise a discretion in determining for himself a question of law. There is hardly any ministerial act which mny not involve such an exercise of discretion. The sheriff must often decide at his own peril, questions of law involving the title to property, before talcing goods in execution. The talcing of bail is a ministerial act, yet the sheriff must *519decide for himself, not only on the sufficiency of the security, but the proper form of the bond. If in this case, the writ had been actually issued, what would have been the breach of his official bond assigned in an action against the commissioner I It would have been that the defendant had issued the writ before a bond had been given conformable to law and the order of the commissioner. Under tire Act of 1825, the defendant was, for this purpose, vested with the power of a chancellor, and acted in that capacity in granting the order. And on that breach, tire action must have been sustained; for in contemplation of law, no bond at all was taken. And it is immaterial whether the giving a bond to the commissioner for the security of the plaintiff at law, be a sufficient compliance with the law directing the'bond tobe given to the plaintiff, or not. In either case, the commissioner would have issued the writ before the law was complied with. I may observe, however, that in my opinion, tire giving of a proper bond to the commissioner would have been a substantial compliance with the law. The obligor would certainly, so far as I can see, be bound by such a bond. It may be regarded as given to tire officer in trust for the plaintiff, and would afford him the same security as if given directly to himself. The universal practice, in which it would be dangerous and. inconvenient to innovate, has established this as a sufficient compliance with the law.

It is true, that in tire anonymous case, 3 Atk. 567, where a party had been served with a writ of injunction, not sealed, and nevertheless proceeded at law, and there was a motipn to attach him for contempt, the chancellor said “ as to the injunction’s not being sealed, that is no excuse for his proceeding at law, after the injunction was granted, because there have been instances here where a defendant, or his attorney only, have been present upon an order for an injunction, and they have proceeded at law before it has been sealed, that the Court has considered this as a contempt, and committed the persons for it.” On the same principle was the decision in *Skipp vs. Harrwood,*Id. 564, where a defendant was present in Court, when a decree was pronounced, appointing a receiver, and on the same morning, before the decretal order was formally passed, removed goods in order to elude the decree, the chancellor committed him for a contempt. So, I have no doubt but that with us, if upon the granting of an order for injunction, the plaintiff at law, with a view to elude the order, should at once | oroceed before time were allowed for giving the bond and sealing and serving the writ, he would be in contempt. But if the defendant should neglect to give any bond, after a reasonable time allowed for the purpose, or should give a bond manifestly informal and insufficient like the present, certain-, ly the plaintiff would be guilty of no contempt in proceeding. The party certainly cannot be entitled to the benefit of the order, who neglects or refuses to comply with the terms on which it was granted. In this case, I have no doubt but that the plaintiff might properly have proceeded, after he discovered what sort of bond the defendant had given. And here it may be observed, that the party must exercise the very same sort of discretion as that exercised by the commissioner, which has been supposed a judicial discretion. He must necessarily decide for himself, as he may be advised, whether the law had been complied with by the giving of a sufficient bond, and proceed at his own peril, if he shall be found to have decided amiss. But neither to him nor the commissioner, as such, has the law given any judicial authority, so as to decide directly on the character or validity of the instrument, and bind other individuals or tribunals by his determination.

The motion for new trial is granted.

*We*concur. J. S. Richardson, David Johnson, Jno. B. O’Neall, Jos. J. Evans,, J. Johnston, A. P. Butler, H. *W.*DeSaussure.