Gray v. Veirs

Robinson, J.,

delivered the opinion of the Court.

This is a suit upon an injunction bond, and the plaintiff in his declaration avers that the order below dissolving the injunction was affirmed by this Court upon appeal, and the cause remanded to the Circuit Court for Montgomery county for further proceedings.

No case was cited in the argument, nor have we been able to find one, in which a suit has been maintained upon an injunction bond until after the final termination of the cause.

If the injunction was dissolved upon bill and answer, and the cause remanded, the complainant has a right to proceed with his case, because he may overcome the denials in the answer by proof, and the Court may be of opinion upon final hearing that the injunction ought to be re-instated and made perpetual.

*161 (Decided 1st July, 1870.)

JSiow if flie position of tlie appellant be correct, he would be entitled to recover damages and costs for a breach upon the injunction bond, pending the equity case, although it may appear by the proof and subsequent proceedings that the complainant was entitled to the relief prayed. Such cannot be the law.

The appellant might have contented himself with the averment that the injunction had not been prosecuted with effect, which would have rendered necessary an affirmative plea on the part of the appellee. But ho undertook to show what had become of the equity case and how the injunction had been dissolved, and in doing this he disclosed a state of things, to wit, the pendency of the case, which if true, also indicated that there had not been such a breach of the bond as entitled the plaintiff to sue at that time.

We think therefore the Court was right in sustaining the demurrer, and the judgment must be affirmed.

Judgment affirmed.