| La. | Jun 15, 1855
The examination of the evidence has not satisfied us that the jury erred in their conclusions upon the question of fraud and simulation.
It is suggested as error that the judgment includes the surety in the injunction bond, although the principal only is named in the verdict. The surety is considered by the statute in the light of a party plaintiff in the suit. See Acts of 1831, p. 102 ; 1833, p. 93. The mere discrepancy between the verdict and judgment in such a case is not, in our opinion, .a sufficient ground for reversal in favor of the surety, who is one of the appellants.
We think, however, the appellants rightfully complain as to the amount of damages allowed.
The judgment b.elow allowed 'twenty per cent, damages on the amount of the judgment enjoined, and $100 counsel fees. It does not appear that proof of damages was adduced, except as to counsel fees. Up to the amount of twenty per cent, the judge is authorized by the statute to assess damages without proof; (Brown v. Lambeth, 2 Annual, 822;) but, in order to allow damages beyond that amount, there should be evidence that the defendant in injunction has sustained damages beyond that amount. It was so ruled in Wileott v. Bundy, 13 Louisiana, 381, in which the court remarked as follows: “ On dissolving an injunction in this case, the judge condemned the plaintiff and his surety to pay twenty per cent, damages, ten per cent, interest, and fifty dollars counsel fees, which it was proved the defendant would he obliged to pay in consequence of the injunction obtained by the plaintiff. The law of the 25th March, 1831, provides that in case the injunction be dissolved, the court in the same judgment shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of ten per cent, per annum on the amount of the judgment, and not more than twenty per cent, as damages, unless damages to a greater amount he proved. It does not appear that any proof was administered except as to the counsel fees. If a greater sum than twenty per cent, was allowed, proof of damages to a sum exceeding that amount should have been made under the statute. The sum of fifty dollars is therefore disallowed. The judgment is therefore reversed so far as relates to that sum, and confirmed as to the residue.”
The affidavit did not make such a showing under the circumstances of the case as would authorize us to say the judge erred in refusing a new trial.