delivered the opinion of the court.
This is an action brought against the principal and surety in an injunction bond. The plaintiff in the suit in injunction voluntarily abandoned it; and by so doing became, with his surety, responsible for all damages which the plaintiff in execution, sustained by the delay occasioned in the collection of his debt. We have examined the evidence, which is voluminous, and as we are of opinion, the judge below did not err in his conclusions, when he gave judgment against the defendants.
A question has been made in this court, as to the discrepancy between the allegatu in the petition, and the proof adduced in support of them. This objection should have been made on the trial below, when the evidence was offered. ¡But, even then it is doubtful, if it could have been successful. ¡The petitioner charges that he has sustained damages by the [defendants’ taking out an injunction against an execution [from a court, and annexes their bond to the petition. The gist pf the action was the taking out the injunction which is cor
We do not see any reasonable ground for this appeal; and we are unable to resist the prayer of the petitioner, that the judgment below should be affirmed with ten per centum damages.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costa, and ten per centum damages in the amount of said judgment, for a frivolous appeal.