DAY vs. MARTIN, 7 La. 365

Bullard J., delivered the opinion of the court. The plaintiff, as assignee of E. A. Day, claims of the defendant, as surety of R. Martin, on an injunction bond, damages alleged to have been sustained by him, in consequence of the wrongful suing out of a writ of injunction, to stay proceedings on an execution, in virtue of which, the sheriff has levied on four slaves, the property of the principal. He alleges, that the injunction was afterwards dissolved, as having been wrongfully issued, and that in the meantime, one of the slaves died.

Another was sold, at the suit of another creditor, and the others cannot be found. The. defendant pleads substantially the general issue, denying the right of the plaintiff, and alleging that the action is barred by prescription, and that the defendant is released by the laches of the plaintiff, in not pursuing the proper steps to recover from the principal. Where it appears that the plaintiff in exevented from ma-kins kis dekt out ot property-seized by the out°anirJunction Í*1? is liable in dam-amount,^ot ex-XyXüiXXdT Although a judgmentenjoinest until paid, p\\XtiffXXinst ih? surety m the isJfoXXmages!

XXXXXnot “nXXnnoXac’ eeed the penalty of tlie bond- The evidence offered by the plaintiff, shows the execution „ , , . . ,. , , . .. of the bond, the assignment to him, the dissolution of the injunction, and the loss and total dispersion of the property, out of which the execution might have been satisfied, if the , injunction had not been granted. One of the slaves is shown to have died, and it is contended by the defendant’s counsel, that the loss ought not to fall on him.

The court of the first instance, appears to have been satisfied, that if the injunction had not been granted, that slave, together with- the others, would have been sold for the benefit of the plaintiff; and the loss of them being a direct consequence of the stay of proceedings, the defendant is responsible. It appears to us satisfactorily, that the plaintiff has been frustrated in the recovery of his debt,.by means.of the wrongful injunction, and that the defendant is liable in damages, for an amount not exceeding the penalty of the bond.

But the court below has, in our opinion erroneously, given a judgment, which, ón computing interest at ten per cent., makes the amount greater: than the penalty sum. Although the original judgment bore interest until paid, the claim <jf the plaintiff against the surety is for damages not liquidated, and which consequently do not carry interest. The balance due on the 18th of August, 1830, is admitted to be one thousand and nine dollars.

Adding to this the interest, which had accrued at the time of the trial, and a reasonable allowance for expenses, incurred in defending the suit in injunction, will make about fourteen hundred dollars, which we think the plaintiff entitled to recover.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed; and proceeding to give such a judgment as ought, in our opinion to have been rendered in the District Court, it is further adjudged and decreed, that the plaintiff recover of the defendant, the sum of fourteen hundred dollars, with costs in the District Court, those of the appeal to be paid by the plaintiff and appellee.