The record shows that the injunction suit was dismissed by the defendants, or rather by the order and judgment of the Court, on their motion. This gave the plaintiff his right of action. The defendants did not show title or possession in Sutter, under whom they claimed; and it was shown that plaintiff was in possession since 1849, and had purchased Sutter's claim to the fifty acres in controversy; and the Court properly refused to instruct the jury in regard to defendants' title.
Plaintiff's right to action was complete, on the dismissal of the injunction suit, for he was in actual possession, claiming and holding the land as his own, and the damages are confined to the injury done to his possession. Suppose the defendants had an unquestionable title, the respondent was in lawful possession, and he may have been a lessee for a term, ortenant of the holder in fee, without notice: he would, even in such case, be entitled to all the damages recovered.
The condition of an injunction bond is broken by a dissolution in part, as well as by a total dissolution. (White v. Clay, Leigh, 68.)
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
Damages may be recovered on an injunction bond, when the injunction has been improperly sued out; and where an injunction is dissolved, the judgment of dissolution is conclusive; and in a suit upon the bond, the only question is the amount of damages sustained. But where an injunction is dissolved, and the suit in which it issued is dismissed by the action of the party who obtained it, it is no admission that the injunction was improperly sued out. It evinces, at least, but an unwillingness further to prosecute the writ. When, in such a case, therefore, a suit is brought on the injunction bond, it is necessary, in order to maintain the action, that it should be shown that there was no proper cause for the injunction.
The Court therefore erred in instructing the jury that the issue should be narrowed exclusively to the question of damages.
The judgment is reversed, and the cause remanded.