dissenting:
If the word “awarded” in the order granting the injunction is understood and intended to mean the same as if the *66word “sustained” had been used instead, then it is possible the conclusion reached in the preceding opinion is correct; because the damages sustained would in this case include the loss of the debt decreed to the plaintiff in the injunction suit, and would therefore make the obligors in the bond liable for such debt. This is all the condition of the bond requires in addition to the costs which are included in both the order and the bond. But the opinion of the court proceeds upon a wholly different ground, and one in which I do not concur. It sanctions the broad proposition that an injunction bond voluntarily executed, with conditions more onerous than the penalty required by the order granting the injunction, is binding upon the obligors not only to the extent required by such order, but also to the extent of its provisions in excess of those so required, unless such provision contravene the policy of the law or the.prohibition of the statute.
In Murfree Off. Bonds, § 894, the law is stated as follows : “Injunction bonds, in common with most other obligations, must be so construed ut res majis valeat quant pereat. If a bond of this description is defective because it does not contain all the statute requires, it will nevertheless be enforced as to the material conditions prescribed by the statute which it does contain. And, on the other hand, if besides embodying all the statutory requirements for a perfect and complete injunction bond it includes other conditions and obligations which are not authorized by the statute, but which nevertheless are not against the law or in violation of public policy, the bond will not be vitiated thereby, but will be held valid, the extraneous matter being regarded as surplusage.” For the first of these propositions the author cites Holliday v. Myers, 11 W. Va. 276, and for the second, Johnson v. Vaughan, 9 B. Mon. 217. Haymond, Judge, in announcing the opinion of the court in the former case, at page 294 says: “When the bond contains some conditions or provisions not required by the statute, and some of those which are required, it is valid and binding to the extent of the latter;” citing Gillespie v. Thompson, 5 Gratt. 132; White v. Clay, 7 Leigh, 68; Fox v. Mountjoy, 6 Munf. 36; Pratt v. Wright, 13 Gratt. 176; Gibson v. Beckham, 16 Gratt. 321; Porter v. Daniels, 11 W. Va. 250.
*67In White v. Clay, supra, the court awarded the injunction upon the terms that a bond with security be given according to law; that is, making the security responsible for whatever might eventually be found due. The bond given required the obligors to pay the amount of the judgment enjoined, and all such costs as shall be awarded by the chancery court. The injunction was dissolved as to only a part of the judgment debt, and the court held the obligors were not bound to pay the whole judgment, but only that part as to which the injunction was dissolved. 7 Leigh 80. In Frazier v. Frazier, 2 Leigh 642, it was decided that “bond with surety taken from an administrator with the will annexed, with conditions not in the form prescribed by law for an official bond of administrator with will annexed, but in the form prescribed for an administrator and not exactly conforming even to that, held, this is not a good statutory bond, and no suit, either at law or in equity, can be maintained against the surety for the benefit or at the relation of a legatee.” This decision was afterwards affirmed in Morrow v. Peyton, 8 Leigh 54.
In Pratt v. Wright, supra, a suit against a guardian and his sureties, the doctrine of these last two cases was so far qualified as to hold the bond valid and binding to the extent of the provisions contained in it which were authorized by the law. The court decided : “A guardian’s bond contains a covenant to indemnify the justices constituting the court at the time it is taken. Although this is not required by the statute, and therefore not obligatory, it does not avoid the bond.” In referring to the opinion of Story, Judge, in U. S. v. Bradley, 10 Pet. 343, the court says: “The judge proceeded further to declare that inasmuch as the act merely prescribed the form and purport of the bond to be taken, and did not declare that all other bonds not taken in the prescribed form should be utterly void, it would be a mischievous interpretation of the act to hold that under such circumstances it was the intendment of the act that the bond should be void. And that it was a sufficient compliance with the policy of the act, and in consonance with the dictates of the common-law and of common sense, to hold the bond void, as to any condition imposed beyond what the law re*68quired, and good, so far as it was in conformity to the act.” 13 Gratt. 180. The doctrine here announced is affirmed in Gibson v. Beckham, 16 Gratt. 321, and Brandt Sur., § 443. In Johnson v. Vaughan, supra, it was held that “the insertion of a condition in an injunction-bond, not required by the statute, but not against law, will not vitiate those that are required by law.” In this case the conditions of the bond in excess of those required by law were not considered binding. 9 B. Mon. 217. In section 194, Murfree Off. Bonds, the author, after stating that if an official bond more onerous in its conditions than the law authorizes is exacted by a superior from an inferior officer, the bond is void as to such extra conditions, says: “But if a person voluntarily gives to an officer a bond, the obligation of which is greater than the officer is authorized to require, he and his sureties are bound thereby to the full extent of the condition.” The only authorities cited in support of this text are Slutter v. Kirkendall, 100 Pa. St. 307; People v. Reeder, 25 N. Y. 302; and Burrell v. Acker, 23 Wend. 606. The first of these cases, Slutter v. Kirkendall, does not justify the text. It was a feigned issue to try the question of the liability of the defendants on a forthcoming bond. The condition of the bond was that the obligors should deliver the property or pay the execution, when the law only required it to be for the delivery of the property or pay the value of the property.
The court, in its opinion, says: The obligors appear to have voluntarily assumed a stronger obligation and they are bound thereby. It is very probable that the value of the property levied on was admitted to be fully equal to the amount of the execution, and therefore the alternative agreement to pay the amount of the execution with costs was considered of no practical importance. Be that as it may, no cause is shown why the obligors shall not be held to a ful-filment of the obligation which they assumed ;” citing the other two cases cited by Murfree. It does not appear that the court would have held the obligors bound to pay the execution, if it had been shown that the value of the property was much less than the debt. The implication from what is said by the court is entirely consistent with the idea that it would not have done so. But however this may be, the cases *69of People v. Reeder and Burrell v. Acker, on which this decision seems to be based, do not sustain the doctrine claimed for it. People v. Reeder was an action on the official bond of a sheriff, and no question arose therein or was decided in respect to the condition of the bond. This case has no application to the question before us. The only question pertinent to the case before us, decided in Burrell v. Acker, is that the New York statute, declaring void all bonds taken by an officer colore officii, does not avoid securities which are valid at common-law when taken by an officer virtute officii. This case never justifies the text in Murfree nor what is claimed to be the decision in Slutter v. Kirkendall, and I have been unable to find any actual decision which does sustain the doctrine that a recovery may be had upon any condition in an injunction bond which is in excess of the requirement of the statute or the order awarding the injunction.
Jameson v. Kelly, 1 Bibb 479, decided by a divided court in 1809, comes nearer to the question in support of Murfree than any other case I have found. In that case the majority of the court held that a bond given in the terms of the order of the judge was valid although they exceeded the literal terms of the statute. They held that the statute was not prohibitory of the authority of the chancellor to impose, in addition to those required by law, such other terms or conditions as may be just and reasonable ; and that, inasmuch as the conditions of this bond did not include anything more than the law would award upon a proper bond, it was held binding. If this case can be supposed to go beyond this, it has been'overruled or qualified in Johnson v. Vaughan, supra, decided by the same court, in 1848.
But, without reference to the decisions in other States, it seems to me the decisions of the courts of Virginia and this State, hereinbefore referred to, have fully settled the law in this State that an injunction bond containing conditions in excess of those required by the statute or the order of the judge is good as to the conditions so required, but not binding on the obligors as to those in excess. These bonds are executed under the requirements of the law in order to obtain the benefit of legal process. They are not voluntary in the sense that they are willingly executed, *70but they are executed solely for the purpose of obtaining the benefit of legal process, and are the only conditions upon which such benefit can be obtained. They are more compulsory than voluntary. The law requires the court or judge to fix the conditions, and, after he has fixed them, it does not seem to me to be either just or in accordance with sound policy, if by ignorance or inadvertence a party gives a bond with other conditions than those required that he should be held bound by such additional conditions. Upon these reasons, briefly stated, and upon the authorities before referred to, I base my dissent from the opinion announced in this case.
REVERSED.