delivered the opinion of the court.
The surety on an injunction bond prosecutes the present appeal, in order to procure the reversal of a judgment by which he was condemned in solido with his principal, to pay interest and damages on the dissolution of the injunction. The principal has not appealed, and consequently, we can inquire into the correctness of the proceedings and judgment, only so far as the surety is affected.
His counsel contends, that the court erred in forcing the defendant into a trial without Wagner, who was a party. Wagner had intervened in opposition, setting up a claim to the property seized. This, according to the Code of Practice, must be considered as a separate demand, and, consequently, the trial between the original parties was properly gone into. Article 398.
It is further insisted, that the injunction having been once sustained by a judgment of the court, the surety was released *519from his responsibility, and that it could not, afterwards, be dissolved to bis detriment.
where a mo-1° dissolve overruled before merits, thejudg-jjj™ Cunction"if only interioeu-novelease ^the bT'díssoiíed'on the final trial as liirvinff Tjcgu wrongfully ob-surety condemned to pay dama- a surety wm'Yá^e1*,-creed to Pay(la-mages on its dissolution, for thVdebt^vWch becomes due after the mjunction is granted. ^ ^ f i83i, giving da-dissolution ofin-junctions, iscon-sideredto beone of great severity,. strictly 'vlU and court.It appears, that by an interlocutory decree of the court, rendered on a motion to dissolve the injuction before trial, upon the merits, the same was maintained, and the motion overruled: and upon the final trial, the court being opinion, that the injunction had been wrongfully obtained, it was dissolved, and the appellant condemned to pay damages and interest. We are of opinion, that the first judgment was not a definitive one, upon the question whether the injunction had been properly granted. Its only effect was to maintain the injunction in force until the final trial, and that the surety was not thereby released. " *
At the time the order of seizure and sale was taken out, and the injunction was granted, only one thousand four hundred dollars was due to the plaintiff. Another instalment fell due, pending the suit, and the appellant was condemned to pay damages and interest on both. The statute of 1831 authorizes a judgment against the principal and his , J . surety for damages, at the rate of twrenty per cent., and interest at ten, on the judgment. Now, the only sum due at the time the order was given, which is the only judgment in , , , , , J J , , the case which preceded the injunction, was one thousand four hundred dollars, and although it may be true that the seizing creditors had a right to have the property sold on sttch terms of credit as to meet the payment not yet due, it appears to us, that he had a right to make in money out of it, only the amount already due. The sale might have been stopped, and the property released, on paying that amount. The judgment was not for the whole amount of the price of the printing press; and we are of opinion that the obligation of the surety did not become more onerous pending tbe suit, . 1 mi m consequence of other instalments falling due. The act of 1831 is so extremely severe, that it has always received from this court a rigorous construction. We are, therefore, of opinion, that the damages and interest should have beep calculated solely on the sum of one thousand four hundred dollars.
*520It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, so far as it relates to the surety of James H. Caldwell, be annulled, avoided and reversed, and proceeding to give such judgment, as in our opinion, should have been rendered below, it is further adjudged and decreed, that the plaintiff recover of the surety, James H. Caldwell, in solido with John Gibson, the sum of two hundred and eighty dollars damages, and interest at the rate of ten per cent., on one thousand four hundred dollars, from the 22d day of June, 1S34, and that the appellee pay the costs of this appeal.