The plaintiff, Assyria L. Jones, brought this suit to recover damages alleged to have been caused by the issuing of an injunction at the instance of Benjamin S. Jones. The injunction was dissolved and this suit is upon the injunction bond against the plaintiff in the injunction case and his sureties named in the bond. *Page 511
It appears from the testimony that Assyria L. Jones, the plaintiff in this case and the appellee in this Court, was the tendant of Benjamin S. Jones, the appellant here, and had been cultivating his farm under an agreement about which there was considerable controversy in the injunction suit It is sufficient to say, however, that, as we have seen, the injunction was dissolved.
The case was originally instituted in the Circuit Court for Worcester County and was removed to Wicomico County. During the course of the trial two exceptions appear to have been taken, but only the second is properly before us — the first not having been authenticated by the signature of the Judge who sat in the case below. The only question presented by the second exception is the propriety of the ruling of the Court upon the prayers. The plaintiff's first and second prayers were granted and the defendant's first, third and sixth were rejected.
The first prayer of the plaintiff merely tells the jury that if they find the defendant procured the writ of injunction mentioned in the bond which was offered in evidence and that said injunction was afterwards dissolved by the Court, then said defendant did not prosecute the writ of injunction with effect or to a successful termination and their verdict must be for the plaintiff. Plaintiff's second prayer sets forth the measure of damages, and instructs the jury that they may find such damages as they shall find from the evidence the plaintiff actually or directly sustained by reason of the injunction, including costs incurred by the plaintiff in the injunction suit, if they find any such costs were incurred by him. These prayers were not seriously questioned by the defendant's counsel. It was suggested, however, that the second is objectionable because it includes plaintiff's costs incurred in the injunction case as an element of damage. But the bond on which this suit was brought expressly provides that these defendants shall pay such costs in case they failed in prosecuting their injunction with effect. The fact that the decree in the injunction case awarded costs to this plaintiff cannot defeat his *Page 512 right of action on the bond as against all three of the defendants. Although he may have a decree for costs in the injunction case and a judgment for the same costs in this case, he can have but one satisfaction. It does not appear, however, that the decree for costs has ever been paid, and it is quite possible that it may never be. But however that may be it is sufficient to say that the bond makes the sureties liable for costs and this plaintiff is therefore entitled to look to them as well as to their principal for payment.
We will now briefly consider the rejected prayers of the defendant, namely, the first, third and sixth.
The first is a demurrer to the evidence, asking the Court to instruct the jury that there is no legally sufficient evidence that any loss or damage was sustained by the plaintiff in the crops or produce by reason of the injunction.
We have carefully examined all the testimony contained in the record and are forced to the conclusion that this prayer should have been granted. The evidence, so far as it is set forth in the record, is most meagre and confused. The plaintiff it is true testifies at considerable length but it is impossible to form any satisfactory conclusion from any of the testimony whether the plaintiff's supposed or alleged losses were the result of the injunction or not. And then, at the end of his testimony the plaintiff says: "I lost none of the property during the pendency of the injunction except the 51 bushels Festus hauled away, and the oats fed to the stock." Who is Festus? The record does not inform us — except that the plaintiff testified that in July before the injunction was served Festus at plaintiff's request divided the wheat crop and he supposed the defendant sent him to the farm; that he (the plaintiff) told the boys to put 50 bushels of the wheat in the barn and the remainder he sent to market; that Festus hauled the 50 bushels away; but whether Festus was acting or was authorized to act for the defendant the testimony does not disclose. For all that appears Festus may have been acting under the directions of the plaintiff. In the present state of the record, which we cannot help believing does not present *Page 513 the case as it was presented in the Court below, we are compelled to hold that the case should have been withdrawn from the jury. But, under the circumstances, we are of the opinion that if the plaintiff, who recovered a judgment below for over $700, should so desire the case should be remanded for a new trial.
Judgment reversed with costs, with leave to plaintiff to applyfor a new trial within sixty days from filing of this opinion.
(Decided June 21st, 1905.)