delivered the opinion of the court.
Jameson, with Wilson as his surely, executed a note to McCall mgh, who assigned it to Everett, upon chich, he sued and recovered judgment. To be relieved against it, tnis suit in chancery, was instituted by Jameson and Wilson. Jameson having died, Wilson filed an amended bill, making his administrator defendant. The bill charge , that the contract was for notes of the Commonwealth’s bank, but that the note was drawn by fraud or mistake, for dollars, omitting to state the true nature of the contract, and prays for an injunction against the judgment, which was granted.
The defendants answered, denying the equity alleged. Upon motion, the injunction was dissolved, as to the whole sum, except ■’jil'A), with ten per centum damages, on the amount dissolved.
At a subsequent term of the court, upon a final hearing of the cause, it was decreed, that the injunction be dissolved; that Everett may proceed to have the benefit of his judgment at law, and recover of the complainants, ten per centum damages, on the amount thereof enjoined,%nd that"the bill be dismissed with costs. From this decree, 'Wilson appealed, assigning for errors, that the bill was improperly dismissed; and that the decree is erroneous for the omission to ascertain the amount of damages.
The proof is insufficient to support the grounds of equity, upon which relief was sought, and the bill was therefore, properly dismissed; but the ground relied upon, as to the damages, is fatal.
On dissolving an injunctioii with (IlUIKlgPS, it Í3 till) dsiW of the court to ascertain their amount. Danny and Triplet/, for plain tills; Hanson, for defendants.The record of the common law suit,* is not made an exhibit in this cause, and there is nothing in die pregen£ recorj5 f,,om whicn it could, with certainty, he calculated.
it was the duty of the courf to ascertain it. The decree, as toine damages, ni ist be reversed, and stand ailirm.id as !.o the, disrm ;s,:on of the bill. The cause must, ihe.eforc, be remanded, that a decree may be entered in pursuance of this opinion.
Each part) must pay his own co-ts in this court.