Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-03-28
GAS AGAIN.
Tine Memphis GsyOsO Gas Company vs..
Thompson Dean-AR United
States Clreuft Court.
Case Removed from State COurt-De
murFeE TO Observation-Disclosures
of Judge Emmons.

Judge Brown and Colonel CAN'T for Plaintiff
Judge Euet, General Humes and Colone
Mcaea for defendant. Withey, Judge.
Suit was brought in the State court By
the Gayoso Gas company against Thomp.
son Dean and two others, his sureties. on
two bonds, one given In this court on the
equity side in suit brought by Dean by
injunction bill against the gas company,
under an order for an iBjunction-the
other WIS given in the supreme court oi
the q nited States pending sa appeal to
thst tribunal. Each in the sum Of
S75, 600.
The conditions Of the bonds are sub
stantially slike-thst the obligors should
pay "sll such damages as should be
recovered'' sgainst Desn Tor wrongfulIy
sueing out sIsid injunction, That given in
the supreml. court, in place of the word
recovered, p has the word 'sdssesseG /" The
injunction suit was dismissed By the man
date Of che supreme court, and thereupon,
plaintiff brought this suit in the State
court. The declaration contained several
counts on the bonds, and others sgainst
Dean alone for q malicious prosecution,
etc., in suing out the Injunction against
the Gas coinpsny. The toinder of these
distinct anGl several causes Of action is
claimed under the statute of Tennessee.
A damurrsr was iEterposed to the de-
cl2rstion, and sustained by the State
court, so far as It was directed against the
counts upon the bonds. But plaintiff was
allowed TO discontinue as to the sureties,
and amend so as to charge Dean alone on
the bonds.
Before further proceedings were had in
the State court Dean caused the suit to be
removed to this court. A demurrer was
here interpCised to the amended declsra-
ton. Three of the counts are upon the
bonds Joined with them ls q count
against Dsarl for q malicious prosecution
in suing ont the Injunction. The demur-
rer is first directed against the counts
upon the boilds, on the ground that plain
tiff has no cAuse Of action thereon, until
the damages have bsen recovered against
Dean by plaintiffs and finally against the
whole declaistion for the jojnder Of counts
&c contracts with others &c degscto,
The plsintih raises an objection to the
demurrer, that the State court, in al
allowing plslntid to discontinue against
the surstiss and amend his declaration go
ss to charge only the principal obigor on
the bonds, has adjudieated the first quss-
tion raised by demurrer here; that suit
can be msintslned on the Injunction
bonds sgsinot D san alone, without pre-
viOus recovery CT tbs damages caused by
the injunction.
We do net regard sUch to be the effsct
of tbs lease granted by the State court to
amsnd. ThlIt court granted the applica.
tion made by plaintiff to amsnd, but did
not In advance pass Judgment upon the
suthcieney or validity Of the sm5nded
pleading. Defendant could there, IS
here, have dsmurred to the amended de-
claration.
Can plaintiff maintain suit on the ipiunc-
ton bonds before recovery Of the dana
ges claimed, is question which the
United States supreme court, in Bein
VS.. Heath, IL How. 176, hss decided
and is mandatory on this court.
It was held in q suit en- an In
junction bond, given In the United States
circuit court Ia equity in Louisiana, that
where tbs bond is not 0ne to pay the oppos-
ing party th,, damages he should s1Estoia
by reason Of the injunction. but to pay the
damsges shit may be recovered against
the plaintiff suing out the injunction the
condition OF the bond is not broken until
there has firft been recovery against the
plaintiff whe sued out Northumberland
that as no dsmags in the Injunction suit
could be decreed against the plaintiff
therein, but only decree that said suit
be dismissed. It follows that the dam
ages must be recovered by another and
distinct actieD. Then, and then only,
Will thare be such recovery OF tho dam
ages a. TO auth0rizs suit upon the iniune-
tion bond. r. matters p0t whether the
suit on the bbnd be against the principal
ohlig0r aloEe, or against him and his
sureties, the dght to Hus on the bond rests
upon previous recovery Of damages.
It Is well ID remember, that thsas bonds
we're given In e suit Of equity Ia the
United States court, where the proeeed-
lngs and lights OF parties ander such
bonds continued to be governed not by
shs laws Of gsenneszee, bat mainly BY the