dissenting. The condition of the appeal bond executed hy Gobi and wife on which the suit is instituted, is expressed in the terms of Art. 579 of the Code of Practice, which declares, “that the appeal bond must set forth in substance, that it is given as surety that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may he rendered against him, &c.” When the plaintiff appeals from a judgment rejecting his demand, the only judgment which the appellate court can render against him, is one condemning him to pay the costs of his appeal — the term suspensive appeal as used in the Code of Practice, has no meaning, except as applied to a judgment rendered against the defendant in a suit. When the plaintiff has resorted to one of the ancilliary remedies provided by law, and which may either precede, accompany or follow the demand he makes, he is required to furnish bond and security and where as in the present case, the remedy so resorted to is an injunction, the court is vested with full discretion to fix the amount of the bond in a sum sufficient to indemnify the party defendant against any loss or damage, which may be occasioned to him by the injunction. If, therefore, the injunction is dissolved by an interlocutory order from which the plaintiff has a right to appeal, the injunction bond affords the appellee the same security against loss, which the plaintiff in ordinary cases derives from the suspensive appeal bond, executed by the defendant who appeals from a judgment, the execution of which he desires to suspend until he can obtain a judgment on the appeal. If the injunction bond is not for a sufficient amount to afford that security, the defendant in injunction has only himself to blame, for not requiring that a bond for a larger amount should be given. If in the present case, the Judge when he granted the injunction, or afterwards on the application of the defendant, had fixed the amount of the injunction bond at a sum approximating even that which he afterwards required for the appeal, or being a just proportion to the interest involved, the rights of the parties would have been settled in the case reported in Ann. R., which was an appeal from a judgment rendered against the surety on the injunction bond, and in which the surety was condemned to pay $3000, the full amount of that bond, as part of the loss which the present suit on the appeal bond has been brought to recover, and the only ground for which appears to be, that owing to the insufficiency of the injunction bond which was only for $3000, a full reparation for the loss sustained by Lowry, in consequence of the injunction, cannot be had, unless he is permitted to recover an-additional sum as damages from the security on the appeal bond, the amount of which being $-, is large enough to cover all losses.
But we are not permitted to extend the obligation of the surety beyond what is expressed in the bond itself, and what the law has declared to be the legal obligation of the surety in such a case, which is to satisfy whatever judgment may be rendered against the appellant. The clear, legal intendment of such a bond, is that the surety shall be bound in place of the appellant to satisfy the judgment which may be rendered in that particular case — the obligation is not to satisfy a judgment which may afterwards be obtained in another suit in the *427shape of damages occasioned by the resort which had been had to an extraordinary and oppressive remedy by injunction which gives rise to a subsequent and separate action. The judgment against the defendant as surety on the appeal bond, condemns him to pay a sum of money which his principal was not condemned to pay either by the judgment of the lower court from which the appeal was taken, or by the judgment of the appellate court. The appeal was taken from an interlocutory order dissolving the injunction, on the defendants in the injunction giving bond and security to deliver the property in the same state in which it was at the moment of issuing the injunction according to Art. 307, O. P. It was held on the trial of the appeal in this court, that this conditional order of dissolution of the injunction was properly rendered, and the court say, “ a suspensive appeal should not have been allowed.” See the case of Cobb et al. v. Parham et al., 4th Ann. R., 147. The case Jure v. First Municipality, 2d Ann. R., 321, was referred to by the court in support of the opinion expressed in Cobb et al. v. Parham et al., that a suspensive appeal should not have been allowed — that was the case of an application for a mandamus to compel the Judge of the Eifth District Court to grant a suspensive appeal from a similar conditional order of dissolution of an injunction under the same Article of the Code of Practice. The refusal of the application is placed on the ground that an appeal is permitted from an interlocutory order only in cases where the order may work an irreparable injury. We think the Judge improperly allowed an appeal from an order dissolving the injunction conditionally, as it could not work an irreparable injury. From the nature of such an appeal, being one taken by the plaintiffs against whom in that case there neither had been nor could be any judgment except for costs, the surety on the appeal bond, undertaking to hold himself responsible for whatever judgment might be rendered against his principal, contracted only an obligation co-extensive with that of his principal, which could not extend beyond the costs of the suit. Such is the law defining the obligation of one who becomes security on an appeal, and such are the terms of the appeal bond signed by the defendant in this case.
In the case of Cartwright v. McMillan, 3d Ann. 685, the court say, “ We must take the obligation as it is; not as it might have been, or as the court might have ordered it to be made. The liabilities of the surety must not be extended.”
The court in the present case, might have ordered a bond to be made in such a form as to render the surety on that appeal bond liable in the same manner that the surety on the injuction bond was liable, and we think great caution should be exercised, by the District Judge in ordering of the appeal bond in cases of appeal, out of the ordinary course, to be so framed as to fix the liability of the surety, but wo are not authorized to disregard the condition inserted in this bond, which is expressed “ to satisfy whatever judgment shall be rendered by the Supreme Court,” — it is the condition which fixes the liability of the surety to a bond taken injudicial proceedings, and it would be unsafe to regard the amount of the bond or the surrounding circumstances, as indicative of an intention on the part of the surety to bind himself in any different manner from that which results from the clear, legal import of the condition which is added to the obligation.
The case at bar is not different from what it would have been, if on dissolution of the injunction after trial on the merits, the plaintiff had appealed, and *428had giy0n a bond in a large amount, conditioned to satisfy whatever judgment should be rendered against him in the Supreme Court. The surety on such an appeal bond, no matter what the amount, could in no event be liable for more than costs and for all loss and damage arising from the injunction, the defendant must look to the bond given on suing out the injunction.