On Rehearing.
The opinion of the court was delivered by
DeBlanc, J.We have considered with care the elaborate and plausible printed argument submitted by plaintiffs’ counsel in support of his application, and we have again examined, with the attention which should be expected from every court, and more particularly from one of last resort, the pleadings, the evidence, the original briefs, and the authorities in this case, and we remain convinced that, except on one point, our first decision conforms to the pleadings, the evidence, the law, and our jurisprudence.
One of the reasons urged by plaintiffs’.counsel to obtain a rehearing is that “ damages can be allowed, in the decree dissolving an injunction, in only those cases in which the execution of a money judgment has been suspended by the writ.” In this, according to our jurisprudence, he is right.
Were we called upon to establish a precedent, we would look in vain in the Code of Practice for a single provision postponing, as between the parties to the suit, a demand so germane, so connected with, and so eminently incidental to the main action.
As to the sureties on such bonds, the recourse against them should, we admit, be by a direct action on their obligations; for, so far as they are concerned, the action on the bond is independent from that brought by plaintiffs, but, as to the principals, the demand for damages against them, whenever and howsoever made, has but one character, one name; it is a reconventional demand, and it might, it seems, be urged and passed upon in the suit from which it springs. C. P. 375.
However, an adverse construction has been sanctioned by a long list of decisions — perhaps disputable — but no longer disputed, and we are not inclined to now change a precedent which, for so many years, has stood in our reports as a guide to the bar, the bench, and litigants.
It is therefore ordered and adjudged that defendants’ claim for damages be and the same is hereby disallowed, as in case of nonsuit, and their action on the injunction bond specially reserved. It is further ordered that, as above amended, and in all other respects, our former decree remain undisturbed.