Jones v. State Ex Rel. Jones

Fowler, J., delivered the opinion of the Court. 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. 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 ⁵¹² right of action on the bond as against all three of the defendants.