Mix v. Vail

Citations

• 86 Ill. 40

Syllabus

<p>1. ürJTrsroTioir bond — damages must be assessed before suit thereon. No action can be maintained on an injunction bond given before July 1,1874, unless the damages are assessed in the injunction suit at the time of the dissolution of the injunction, or before that suit is finally disposed of.</p> <p>2. Same — effect of stipulation as to damages. Where an injunction was dissolved in vacation, and the bill dismissed under a stipulation that the dismissal and an appeal which was taken should in nowise affect the right of the defendants to have their damages assessed for wrongfully suing out the injunction, in case of affirmance, and the final decree gave the defendants leave to file a suggestion of damages within ten days, it was held, that this did not dispense with the necessity of having the damages assessed in the chancery suit and authorize them to be assessed in a suit upon the injunction bond.</p> <p>3. Same—stipulation changing surety's liability. The parties to an injunction suit can not, by stipulation, vary or extend the liability of the sureties in the injunction bond, as, by agreeing that damages may be assessed in a suit upon the bond, for the first time.</p> <p>4. Same—construed by law in force when given. An injunction bond must be construed with reference to the statute in force when it was executed, and the construction given to the statute by this court; such law and construction enter into, and form a part of, the undertaking. The liability cannot be changed by the passage of a statute which takes effect after the execution of the bond.</p> <p>5. Statute — does not affect rights till it takes effect. A statute passed before the execution of a contract or injunction bond, but which does not taire effect until afterwards, is, as to such contract, no statute, and can have no effect on the contract or bond.</p>