delivered the opinion of the court.
The defendants prayed for the dissolution of the injunction on the ground, that it appeared from the face of the papers, that it was wrongfully issued without proper showing, and on the plea of res judicata.
An affidavit attesting the correctness of the facts and allegations in the petition which render an injunction necessary, is insufficient to au-thorise the court to issue one,' On the dissolution of an injunction, the fee of the defendant’s attorney may he allowed as specialThe injunction was dissolved; the plaintiffs and their surety were decreed to pay ten per cent, for general, and seventy-five dollars for special damages and costs. They appealed.
The defendant prayed for an amendment of the judgment by an increase of the damages to twenty per cent, interest, and damages for the frivolous appeal.
The plaintiffs contended that the injunction ought not to have been dissolved; and as they were notparties to the judgment, the execution of which they had enjoined, damages ought not to have been given against them or their surety.
The affidavits on which the injunction was obtained, attes. ted the truth and correctness of the facts and allegations in the petition, which rendered an injunction necessary.
The present case cannot be distinguished from that of Hebert vs. Joly, et al. determined in last January term. It was there held, that such an affidavit is absolutely insufficient to authorise an injunction.
We think the general damages were properly allowed; because there is a second injunction to arrest the judgment of the present defendants; and because on the second injunction the present plaintiffs were reconvened as debtors of the present defendants, in their capacity of heirs.
The party who claims an injunction, must state in his petition the facts which render an injunction necessary. Code of Practice. This means all the facts then existing, otherwise he might successively claim sundry injunctions on the score of payment, release, compensation, and the like.
The fees of the attorney were properly allowed.
We do not think that the court below erred in not allowing the maximum of general damages; nor that we ought to give any for the frivolous appeal.
The Act of 1831, page 102, requires judgment to be given against the surety.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.