[After stating the facts as above.]—The ground upon which the appellants claim that no order of reference should have been made in this case is, that they have been discharged from all liability upon their undertaking by reason of the stipulation entered into between the parties after the hearing upon the motion to make permanent the preliminary injunction. It is difficult to see in what way the interests of the sureties have in any way been affected adversely by the stipulation.
It is clear that if the court had set aside the injunction upon the hearing of the preliminary motion, and the plaintiffs’ complaint had been finally dismissed, that -the right of the defendant against the sureties 'for damages sustained by the preliminary injunction could not be questioned.
The condition of the case at bar by the stipulation, was not rendered any more unfavorable to the sureties than it would have been by a decision upon the motion for an injunction of the kind mentioned. The only effect of the stipulation was to limit the liability of the sureties to damages caused prior to the date of the stipulation, by the preliminary injunction, which up to that time had.not been vacated or set aside.
An inspection of the order of the court shows that the injunction was to be granted unless the proceeds of the property were secured by a bond to be given by the defendant Herman. And if that order had remained in force, and Herman had failed to give the bond required by the order, the injunction would have continued, pending the suit, and the damages would have continued to run against the sureties upon the *300undertaking. Instead of that, the parties to the action agreed that the preliminary injunction might be vacated, and virtually provided that the question of damages under the injunction should be limited to the time of the hearing of the motion for the injunction.
I see no reason why the parties may not stipulate that an injunction be vacated upon the hearing of the motion to make it permanent, and that the rights of the parties upon the undertaking, given upon the preliminary injunction, shall thus be precisely the same as though the injunction had been vacated by the court.
That is all that was done in this case, and I entirely fail to see how any of the rights of the sureties have been affected. The sureties certainly have no vested right in having the damages under the injunction made as large as possible, and any action of the parties which tends to diminish them liability, which tends to limit it to a given time instead of allowing it to continue to the end of the suit, cannot be said to be prejudicial to their interests.
I am of the opinion, therefore, that the stipulation entered into in this ease in no way affected any rights of the sureties or operated as any release of the obligation entered into by them upon the execution of the undertaking in question.
The order of reference should be affirmed, .with-C.qsts.
-Labbemobe, J., concurred.
Order affirmed, with costs.