Anderson v. Falconer

34 Miss. 257 | Miss. | 1857

Handy, J.,

delivered the opinion of the court!

This action was brought upon an injunction bond, containing the following condition: “ The condition of this obligation is such, that whereas the said Sallie M. Anderson has exhibited in the District Chancery Court, &c. . . . her bill of complaint against Thomas A. Falconer, the obligee, praying an injunction against him: and whereas, by the fiat of Hugh R. Miller, judge, &c., the injunction prayed for bas been granted, upon the execution of bond by said complainant conditioned according to law, &c. Now, therefore, should the said Sallie M. Anderson prosecute her said suit with effect, or, failing therein, should she well and truly pay, or cause to be paid, to the said Thomas A. Falconer, all such costs and damages as shall be awarded against her, because of the issuing of said injunction, then this obligation to be void,” &c.

The breach assigned in the declaration is, that the suit in chancery was not prosecuted with effect, but that the injunction was dissolved and the bill dismissed; and that “ the plaintiff sustained damages by the issuing of said injunction, to the amount of one thousand dollars,” which remains unpaid.

The defendant below demurred to the declaration, assigning, amongst others, the objection, that it does not aver' that any damages were awarded because of the issuing of the injunction, and therefore that no breach of the condition of the bond is shown. This demurrer was overruled, and the plaintiff had judgment.

We think it clear that the demurrer was well taken.

It does not appear from the record what was the nature of the injunction, or what was enjoined. But whatever may have been its nature and effect, it is manifest that no remedy for the injury resulting to the party enjoined, in consequence of it, could be maintained in an action upon the bond, beyond the plain terms of the bond. If the bond, in the form in which it-was executed, was an insufficient security to the party enjoined, for the damage which might be sustained in consequence of the injunction, it was his duty to require, by order of the court, a sufficient bond; but having failed to do so, he cannot afterwards recover upon the bond to an extent beyond the measure of the obligation.

By its terms, the obligors were bound to pay all such costs and damages as should be awarded by reason of the failure to prosecute the suit with effect. This language is plain, and not susceptible of doubt, and before any liability to an action could arise upon the bond, it was necessary to aver that damages had been properly awarded; because, to pay such damages was the extent of the obligation. If no damages were awarded, there could be no recovery upon the bond; much less could damages be recovered to a greater extent than were awarded, on the ground that such damages had been sustained by reason of the injunction; for that would be to extend the words of the obligation beyond their plain import, and in effect to make a new bond for the parties by construction, to cover the damage really sustained.

The judgment is reversed, the demurrer to the declaration sustained, and the cause remanded for further proceedings.