delivered the opinion of the Court.
This is a suit on an injunction bond — the defendants pleaded the general issue, and a tender.
The plaintiff had a verdict for $242 14. He released the whole damages except $55, for which judgment was entered. The defendants appealed.
Three bills of exception were taken. The as to the opinion of the Court who admitted in evidence a judgment pronounced, and entered, but not yet signed, to prove the insolvency of the plaintiff’s debtor;
The second was to the Judge instructing the jury that the bond sued on was taken in virtue of an authority given by law, which must be strictly pursued — therefore the name of Jonathan Morgan [the sheriff] one of the obligees, being inserted without his authority, the bond was void as to him ; but as to the other obligee, Pargoud, his name being inserted by authority of law, the bond was good as to him.
The proceedings on the cession of the plaintiffs debtors are the best evidence to show his insolvency; and are admissible as proof when judgment rendered on them is not even signed. In taking an injunction bond, the officer acts under an authority of law, and inserts the name of the obligees without their consent, so that where one is properly inserted, and another unnecessarily, the bond will be valid as to the right one, and the other nugatory- In assessing damages on an injunction bond, the jury may very properly allow the plaintiff for his reasonable costs & trouble in obtaining a dissolution of the injunction in which the bond was taken. A plaintiff may release a part of the verdict even before judgment is pronounced upon it, to avoid a motion for a new trial. “Every man may renounce his rights or any part of them.”The third was to the opinion of the Court instructing the jury they might take into consideration fees paid by the plaintiff (Pargoud) to have the injunction dissolved.
The proceedings on the cession of the plaintiff’s debtor. were the best evidence of his insolvency — and they were not the less so from the circumstance of final judgment being as yet unsigned.
The injunction bond is always taken without the consent of the party to be enjoined. The law requires the bond to be made payable to him, and renders it valid without his acceptance. The Judge therefore did not err in saying that as to him the circumstance of the insertion of his name did not vitiate the bond. The other obligee was the sheriff who had levied the execution — his name was unnecessarily inserted. But it does not appear this circumstance prevented the plaintiff from recovering the damages from the defendant -, at all events this should have been pleaded in abatement.
In assessing the plaintiff’s damages, the jury might well allow him a reasonable sum for his trouble and expense in prosecuting the dissolution of the injunction.
Lastly, it is urged the judgment is erroneus, as it does not follow the verdict as found by the jury.
The Plaintiff released such part of the damages found by ■ the jury as he had received from the sheriff on account of his illegal conduct after the judgment was obtained. It is a common practice for a plaintiff to prevent or defeat a motion for a new trial, by a release of such part of the verdict as was illegally allowed. This can do no injury to the defendant, and every man may renounce his rights, or any part of them.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with damages.