Page:Federal Reporter, 1st Series, Volume 3.djvu/444

 DEAEIN V. STAKTOK. 4^|f �which the opposing party should sustain by reason of the injunetion, but it is to pay the damages that might be recoy. ered against them; obviously referring, we think, to the prae- tice in Louisiana above mentioned. A court, proceeding according to the rules of equity, oannot giye a jndgment against the obligoïs in an injunetion bond when it dissolves the injunetion. It merely orders the dissohition, leaving the obligee to proceed at law against the sureties, if he sustaiuB damage from the delay occasioned by the injunetion. This •was done by the circuit court in the former suit between the parties. No judgment was or could be given against the obligors for debt or damages, and none were reoovered against them previously to the institution of this suit. The contin- gency on which they agreed to pay has not, therefore, hap- pened, and the condition of the bond is not broken, and con- eequently no action can be maintained upon it. It would be against the well-established rule of the chancery court to extend the liability of the surety by any equitable construc- tion beyond the terms of his contract; and in a proceeding upon a bond the liability of the principal obliger cannot be extended beyond that of the surety." Id. 179. �One of the conditions of both of these bonds is that &e obligor was to pay the defendant in the chancery case ail costs and damages which shall be awarded. The court will, of course, take notice of its own records, and the averments in the declaration are sufficient to show that the case was so disposed of that an award for costs was made against tha complainant in the original bill. If these costs have not been paid, I have no doubt the plaintiflf should have leave to amend, by alleging a breach or failure to pay the costs, in which event the plaintiff will have the right to recover on this bond the amount of costs which were awarded. If there is no claim for costs, of course there will be no necessity for amending, We have been considerably embarrassed about this case, and in Bome doubt as to whether the supreme court would strictly follow the case which has been cited, and which we consider, at present, as oontroUing j and, in order to give the plaintiff the benefit of a writ of error, if he wishes to take the case ����