43 Miss. 120 | Miss. | 1870
Win. S. Baggett and Martha, his wife, sued the defendants in error in the circuit court of Lawrence county, on injunction and sequestration bonds, and assigned sundry breaches. The defendants pleaded nil debit. Plaintiffs moved to strike out the plea, because not responsive to the declaration, which motion the court overruled, and the issue was found by a jury for the defendants, who bring the case here bjr writ of error, and complain of errors :
1st. In not striking out the plea of nil debit.
2d. In refusing to receive testimony of counsel fees paid in the chancery causes.
The last assignment involves the question, whether counsel fees and transcripts of papers to be used in the chancery
Under the Code of Practice of New York, when the injunction order is made, the court or judge takes from the party a written undertaking, with or without sureties, to the effect that the plaintiff will pay to the party enjoined such “damages” as he may sustain by reason of the injunction, on dissolution of the injunction. It was said by the chancellor, in the case of Edwards v. Bodine, 11 Paige, 224, “ the counsel fees are clearly covered by the terms of the bond.” So, in principle, is the case of Gunter v. Morrison, 31 Barb., 157. In many of the states the point has been adjudged the same Avay. Shultz v. Morrison, 3 Met. Ky. R., 98; Gairett v. Logan, 19 Ala. N. S., 344; McRea v. Brown, 12 La. Ann., 181. The cost of any transcripts, to be used in the defense of the chancery suit and actually so used, are also covered by the condition of the bond, and may be recovered in this suit. The circuit court erred, there
Jtidgment Reversed, and cause Remanded for a venire facias.