March.

1826. knew the notary in London, who had protested the bills, and could with ease have gotten notarial copies from him, which he would have done, if he had seen any prospect of

Pate

บ.

M'Clure, benefitting Pate. From these considerations, it is perfect&c. ly clear to me, that Alexander M'Clure was guilty of no such negligence as would make him chargeable: that Lynham was utterly insolvent, so that no injury could result to the plaintiff from any negligence, from the loss of the bills, or the failure to disclose that loss to Pate; and that there is no ground for this second objection.

It was objected in the argument, that the Chancellor erred in supplying the place of the trustee, who had died. pending the suit, and in committing the execution of the trust to the marshal, under the superintendence of the Court. I have reflected a good deal upon this point, and examined the cases. Upon the reason and the practice, I cannot think the thing wrong. The parties had submitted their case to the equity of the Court. The Chancellor had arrested the proceedings in the country. This was done at the instance of Pate by bill of injunction, making such a case, as the Court of F'quity thought justified its interference. The case was fully developed, and it appeared finally, that the plaintiff's injunction was wholly unsupported. The Chancellor decided all the points against him; and it was clear that he ought, in good conscience, never to have come into equity, to arrest the proceedings of the trustee. In the mean time, this trustee had died; and though the deed was to him and his heirs, the trust was a personal confidence placed in him. Who his heirs were, whether infants or adults, does not appear. The Chancellor was either to dismiss the bill and leave this matter in doubt and uncertainty, or to supply the place of the trustee, and thus place the parties as nearly as might be, in the situation they would have occupied, if the case had not been brought before the Court. The right to make such substitution by motion, and without putting the parties, who were all before the Court, to new pleadings, seems to

March.

Pate v.

&c.

me fairly to belong to those powers, which Courts of Equi- 1826. ty, in order to do complete justice, exercise in all cases before them; and more especially, in injunction cases. If the trustee had continued in life, and there had been no ob- M'Clare, jection to him on the score of interest, misconduct, or any other sufficient ground, I would by no means be understood to say, that the Chancellor could, of his own mere motion, set him aside, and put the execution of the trust into the hands of the marshal. This would be to deprive the parties against their will, of a trustee, to whom they had both confided the business, as their confidential friend, and to subject them to the commissions of the marshal, when that friend could probably execute the trust without expense. The case here is wholly different. The creditor has been deprived of the services of the trustee, by the interference of the Court, at the instance of the plaintiff; and the question is, cannot the Court, at the request of the creditor, and when the plaintiff makes no objection that we see in the record, repair the mischief which its interference has produced? I think what Lord Eldon says, in Pultney v. Warren, 6 Ves. 92, very applicable to this case. Speaking of the injury which had resulted to a party from an injunction granted by the Court, he says, "If there be a principle, upon which Courts of Justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights, done at the instance of the party against whom the relief is sought." He then cites a case from Shower, where a party came into equity to be relieved from a bond, which was sued on at law. The litigation was drawn out into such length, that before the decision, the principal and interest far exceeded the penalty of the bond; and the Court of Equity, finding that the injunction was unfounded, and the bond justly due, decreed that the plaintiff should pay the whole principal, interest and costs. Duval v. Terry, Show. Parl. Cas. 15. Commenting upon this case, he says, "by the mere circumstance of filing the bill, the plaintiff would

V.

&c.

1826. be taken to submit to every thing conscience and justice March. require. Upon that principle, he would be held to do Pate that which is just; and the Court, duly acting with him, M'Clure, would compel him to pay the principal, interest and costs, occasioned by his delay. It may be said," he adds, "that this is a relief against a plaintiff coming for relief. I consider these persons as plaintiffs, asking an injunction, and impliedly saying, they ask it upon the terms of putting the plaintiff (at law,) in exactly the same situation, as if it had been determined they were not entitled; for otherwise, there is no colour of justice in calling upon the Court to discuss the question, whether they are entitled to equitable relief. These, it seems to me, are sound principles, and very applicable to the case before us. There are also several cases in this Court, where the Court in order to render complete justice, have gone quite as far as the Chancellor has done in this case. I will only refer to the cases by name. Todd v. Bowyer, 1 Munf. 447. Fox v. Taliaferro, 4 Munf. 243. West v. Belches, 5 Munf. 187. Ball's devisees v. Ball's ex'rs. and widow, 3 Munf. 279; and Humphreys' adm'r. v. M'Clenachan's adm'r. 1 Munf. 493, a very strong case.

It was also objected, that the decree was erroneous, in giving to the person who might purchase the land at the sale by the marshal, the benefit of the bond executed by Pate and his brothers to M'Clure & Co. and conditioned to remove the lien of Galt on the land. But I think this part of the decree perfectly correct, and so clearly equitable, that I rather think it would have followed without the decree. Nor can the sureties complain; for, it does not change their situation, nor affect any defence they may have against the bond.

Thus far, I think the Chancellor correct. But there is one part of the decree, from which I feel compelled to dissent. It is that which suspends the sale, till the defendants, or some one for them, shall give bond in the sum of $6000, conditioned to pay the plaintiff all such damages

March.

Pate

V.

as he may recover of them, on account of the conduct of 1826. the defendant Alexander, touching the bills of exchange. I think the whole record shews, that the plaintiff has suffered no damages whatever from the conduct of Alexander; and though I would leave the plaintiff free to bring any suit he may choose, there does not seem to be the least ground. for subjecting the defendants to give the bond.

I am of opinion, therefore, that this part of the decree be reversed, the residue affirmed, and that the cause be remanded to be proceeded in accordingly.

The other Judges concurred, and a decree was entered in pursuance of the foregoing principles.*

* Judge GREEN absent.

M'Clure,

&c.

A bail bond which is returned to the clerk's office, but which specifies no sum

to be paid by the obligor to the obligee, is a mere nullity.

The difference between deeds, and bills of exchange, and promissory notes, as to the mode of their execution.

These were two actions of debt brought in the Superior Court of Law for the County of Rockingham, by the appellees against John Clarke, on two single bills. Each writ was endorsed, "Debt on single bill. Bail required." These writs were returned executed, with G. W. Harrison as appearance bail. At the same time, papers, purporting to be bail bonds, were returned to the clerk's office. These papers were in the usual form, signed and sealed by John Clarke and G. W. Harrison, but no sum is men

1826. tioned in the penalty of either bond. Declarations were March. filed, and office judgments obtained against the defendant Harrison and G. W. Harrison, his appearance bail.

υ.

Tiernans.

Harrison applied for, and obtained a Supersedeas to these judgments, from a Judge of this Court.

Wickham, for the appellant, referred to the case of Shelton v. Pollock & Co. 1 Hen. & Munf. 423, as decisive of this question.

Nicholas, for the appellees, contended, that upon general principles, whenever a man signs a bond in blank, he gives authority to another to fill it up. That this is true of negotiable paper, is proved by Chitt. on Bills, 35, 113. 4 Mass. Rep. 45. The same principle exists as to bonds. 5 Mass. Rep. 538. But the case of bail bonds is still stronger. Our Act of Assembly prescribes no particular form. It is enough for the Sheriff to take the engagement of the bail, that the principal shall appear &c. This principle undoubtedly prevails in the case of forthcoming bonds. Wilson v. Beall, 4 Munf. 380. Bartley & Ferguson v. Yates, 2 Hen. & Munf. 398. The omission of a penalty is immaterial, as it is not required. A bond may be with or without a penalty. Such an error would not be fatal in England, where the Statute is more particular than in this country. Sell. Prac. 143. Rogers v. Reeves, 1 Term. Rep. 418. The bond is not in question here.. Judgment has been obtained against the principal and bail, in the original suit.

Wickham replied, that there was no analogy between the case of a bond, and a mere promissory note, or a bill of exchange. A bond is a deed and requires delivery to perfect it. As for the Massachusetts Case, it is not law. The other cases cited, are wholly inapplicable.