86 Ill. 194 | Ill. | 1877
delivered the opinion of the Court:
It does not appear any damages were awarded plaintiffs on the dissolution of the injunction in the circuit court, and because of that omission, it is apprehended, no damages other than nominal can be recovered, either on this-bond or the original injunction bond, for any damages-plaintiffs may have suffered by* reason of the wrongful suing out of the injunction, prior to the date of the decree appealed from. .The case of Mix v. Vail et al., at present term, is conclusive as to this view of the law.
But the declaration in this case is not framed with a view to recover such damages. Only such damages as plaintiffs may have sustained after the appeal was taken, by reason of the injunction being kept in force, are involved in the action, and it is as to such damages the breaches are assigned. That brings us to consider whether the bond declared on contains any covenant that will embrace such damages as plaintiffs allege they have sustained by reason of the injunction being kept in force by defendants’ appeal.
Breaches are assigned upon that clause of the bond which provides that defendants “ shall duly prosecute their appeal, and shall pay said judgment, costs, interest, and all damages caused by wrongfully suing out said injunction, in case said judgment and decree shall be affirmed.” No breach was assigned that defendants did not pay the “judgment, costs, interest,” rendered against them. Aside from that clause which obligated defendants to “ duly prosecute their appeal,” the only other condition the bond contains is that defendants shall pay “ all damages caused by wrongfully suing out said injunction.” The question arises, What damages are embraced in that condition of the bond ? Construing the words used as they are ordinarily understood, it seems plain such damages as had been “ caused ” by the wrongful suing out of the injunction were all that were within the condition of the bond. No condition of the bond obligated defendants to pay such damages as plaintiffs might sustain by reason of the injunction being kept in force by their appeal. Any construction that would make defendants responsible for such damages as might thereafter be sustained would be to enlarge the undertaking of the sureties on the bond beyond anything expressed in the bond "itself. The measure of the liability of sureties is fixed by the terms of the instrument they may sign, and we do not understand such undertaking can be enlarged or varied by judicial construction. That would impose upon a mere surety obligations he had never assumed, and perhaps would have been unwilling to take upon himself.
Had this bond been conditioned that defendants should pay such damages as plaintiffs might sustain by wrongfully keeping the injunction in force by the appeal, then the breaches assigned would be more appropriate, and it would become necessary to consider other questions raised; but, as this construction of the condition of the bond is conclusive of the whole case, it will not be necessary to notice other points made in the defense.
The demurrer was properly sustained, and the judgment will be affirmed.
Judgment affirmed.
