Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d.
This appeal is from orders of the Superior Court, Chancery Division, summarily enforcing a bond given in a matrimonial cause.
Harry Beekwilder and Ida Beekwilder were divorced in Florida, and he then brought an action against her in the Superior Court here, apparently under N.J.S.A. 9:2-1, for the custody of their children. By the final judgment in the action, he was given custody of the children from September 15 to June 15 each year and ordered to deliver them to Ida within one week after June 15, whereupon she was to have custody of them until September 15. To secure his obedience to these terms, he, a resident of Florida, was required by the judgment to post a bond, with surety, in the penal sum of $2,000. In June 1953 he failed to deliver the children, and a motion for the forfeiture of the bond being made in the custody action, the court ordered the surety on the bond to pay the penal sum to the attorney for the defendant. The surety appeals.
First, it is urged here that the bond can be prosecuted only in a plenary action at law. That is a question upon which the law, except with respect to ne exeat bonds, has been unsettled for some 75 years, and it imposes upon us the task of examining closely what may seem to be a tangle of authority.
Chancellor Runyon, in a dissenting opinion dealing with injunction bonds, expressed the view that the Court of Chancery could summarily enter judgment upon all bonds given in the course of Chancery practice. See New York & Long Branch R.R. Co. v. Dennis , 40 N.J.L. 340, 372
(E. & A. 1878), disapproving Vice-Chancellor Van Fleet's decision in Easton v. New York & Long Branch R.R. Co. , 26 N.J. Eq. 359 (Ch. 1875). The pronouncement of the Chancellor led the vice-chancellor in Easton v. New York & Long Branch R.R. Co. , 30 N.J. Eq. 236 (Ch. 1878), to reverse his earlier stand; and though this last case was itself reversed upon other grounds in Brown v. Easton , 30 N.J. Eq. 725, 731 (E. & A. 1879), the present question was left open.
Chancellor Runyon applied his views to other cases having to do with injunction bonds. See Green v. Philadelphia Freestone & Granite Co. , 26 N.J. Eq. 443 (Ch. 1875); Cook v. Chapman and Cook , 30 N.J. Eq. 114 (Ch. 1878), cf. 41 N.J. Eq. 152 (Ch. 1886); cf. Smith and Martin v. Kuhl and Hewitt , 26 N.J. Eq. 97 (Ch. 1875). Dicta to the contrary will be found in our reports. Elliott v. Elliott , 36 A. 951 (N.J. Ch. 1897) and Schreiber v. Schreiber , 85 N.J. Eq. 303 (Ch. 1915), affirmed on other grounds 86 N.J. Eq. 437 (E. & A. 1916). However these dicta depend, for their authority, upon the first opinion of Vice-Chancellor Van Fleet in Easton v. New York & Long Branch R.R. Co. , 26 N.J. Eq. 359 (Ch. 1875), supra , which, as stated, he himself later reversed.
There is a line of distinguished authority in the federal courts relative to injunction bonds, which is altogether in agreement with the views of Chancellor Runyon. The leading case is Russell v. Farley , 105 U.S. 433, 26 L. Ed. 1060 (1882) wherein the court refused to follow the cases of Bein v. Heath , 12 How. 168, 53 U.S. 168, 179, 13 L. Ed. 939 (1851, Taney, C.J.) and Merryfield v. Jones, Fed. Cas. No. 9 486, 2 Curt. 306 (C.C. 1855), the very cases upon which Vice-Chancellor Van Fleet in his first opinion depended for authority. The practice in other jurisdictions, as laid out in statutes, rules or otherwise, is similar. 43 C.J.S., Injunctions , § 283 a, p. 1060 et seq.; Ann. Cas. 1918 C 97; 2 Daniell, Chancery Pleading and Practice *1666 (6 th Am. ed. 1894).
It is important to observe that under these cases having to do with injunction bonds -- that is, under Easton v. New
York & Long Branch R.R. Co. , 30 N.J. Eq. 236 (Ch. 1878), supra (V. C. Van Fleet's second case), and also under the federal and certain other cases -- the injunction bond may be prosecuted summarily in the equitable proceeding in which it is given, even though it does not contain a provision authorizing such practice. See Chancery Rule 46 as promulgated in 1853 (cf. Rule 218, 1938 edition , Rules of former Court of Chancery -- there is no such rule today), which required such a provision to be inserted in an injunction bond. See also Easton v. New York & Long Branch R.R. Co. , 26 N.J. Eq. 359 (Ch. 1875), supra; Dickinson's Chancery Precedents , 301-308 (rev. ed. 1894); 4 New Jersey Practice (Marsh and Vogel), Forms , § 1827; cf. Smith v. Day , 21 Ch. Div. 421 (C.A. 1882); Griffith v. Blake , 27 Ch. Div. 474 (C.A. 1884); 18 Halsbury's Laws of England (2 nd ed. 1935), 116; cf. also R.R. 1:4-9.
With respect to a ne exeat bond, Chancellor Runyon's views are now fully accepted in this State. The law is now that the sureties on such a bond, by their signatures thereon, make themselves parties to the cause for all purposes connected with the bond. Schreiber v. Schreiber , 85 N.J. Eq. 303 (Ch. 1915), affirmed (but without passing on this point) 86 N.J. Eq. 437 (E. & A. 1916), supra. Upon a motion in the cause, the court may declare the bond forfeited and direct the sureties to pay the penalty thereof into court. Wauters v. Van Vorst , 28 N.J. Eq. 103 (Ch. 1877, Runyon C.); Elliott v. Elliott , 36 A. 951 (N.J. Ch. 1897), supra; Schreiber v. Schreiber, supra; Penny v. Penny , 88 N.J. Eq. 160 (Ch. 1917); Vahjen v. Vahjen , 105 N.J. Eq. 271 (Ch. 1929), affirmed 107 N.J. Eq. 186 (E. & ...