(Dissenting.) The obligation of the defendants is that of suretyship, “ to secure the payment of such damages as may have been sustained in case it should be decided that the injunction had been wrongfully obtained ” by Loioe & Pattison. C. P. 804. It appears that the plaintiffs were holders of two drafts, accepted bj' Loioe & Pattison, one drawn by H. A. Fun-nally & Co., to the order of and endorsed by A. Pattison, Jr., for $8,500, dated 20th Dec. 1850, and payable twelve months after date, and the other drawn by James E. Woods, to the order of and endorsed by Frances A. Woods, for $4,500, dated West Baton Rouge, 24th February, 1851, and payable twelve months after date; this draft appears to have been secured by mortgage. The drawers of the other draft resided out of the State. Lowe & Pattison sued out an injunction against the plaintiffs, alleging that the latter had obtained these drafts from W. B. Partee & Co., who were insolvent, for the purpose of giving them an undue preference over the other creditors, and that they were themselves creditors to a large amount? The injunction was dissolved, and the plaintiffs now seek to make the sureties on the injunction bonds liable.
The Act of 1831, authorizes the court, upon the dissolution of injunctions, to condemn-the plaintiff and surety jointly and severally, to pay ten per cent, interest on the amount of the judgment enjoined^ and not more than twenty per cent, as damages, unless damages to a greater amount be proved. 3 An. 127. It is true that this applies to cases where judgments are enjoined, but it can hardly be contended that the other cases are entitled to be placed on a more favorable footing. I am unable to concur with the Judge a quo, that the suretiesin the injunction bonds should be held liable for the amount of the drafts, as the measure of damages. It is in evidence that the plaintiffs instituted suit upon the drafts, and recovered judgment for the amount thereof against Lowe & Pat~ tison. One of the parties, W. H. Pattison, made a cession of his property to *756his creditors, on the 5th of January, 1853. There is no evidence before us which shows that the other partios are insolvent, or that the drafts have become worthless, in consequence of the injunction. In the case of Hutchinson v. Sparks, 3 An. 648, the court hold, that “ withholding from the defendant the evidences of debt upon which he desired to raise money, should not indu'ce a more rigorous measure of damages than withholding alike sum of money; and in such a case, the measure of damages would be interest.” C. 0, 1928, 1929. On the hypothesis that the solvency of the drawers and endorsers to the drafts stood unaffected by the injunction, it would be difficult to draw any distinction, in principle, between the present and that case. There Sparles had actual possession of the notes, which he withheld from Hutchinson, who was, thereby, prevented from raising money to prosecute his business successfully. Here it is complained that the plaintiffs had made an arrangement for the sale of the drafts, at the rate of 2-¡¡- per cent, discount per month, when they were prevented from effecting the same in consequence of the injunction, and in the meantime, the acceptors failed, and one of them, W. H. Pattison, made a surrender of his property under the insolvent laws. As the obligation, in this case, does not arise from a quasi-offence, it is clear that in the assessment of damages, the law leaves no discretion to the Judge, who must be governed by the rules laid down in the Civil Code, Art. 1928.
I am, therefore, of opinion that there should be a judgment of non-suit against the plaintiffs with costs in both courts.
Mr. Justice Buciianan, concurring.