
    Robertson, Trustee, &c. et al. v. Travis, Sheriff.
    Where a petition for an injunction is presented by a party who describes himself as a trustee, it is unnecessary that his capacity as trusteeshonld.be repeated in the affidavit.
    Where ap ap application to .obtain an injunction, made .by several persons representing distinct interests, the affidavit is made by only one of the parties, and it does not appear either from the petition or.the .affidavit that he acted as the agent of the others, the injunction must be dissolved as to the parties by whom no affidavit was made.
    from the District Court of. Carroll, Selby, J.
    
      R. N. and A. N. Ogden, for the appellants.
    
      Stacy and Sparrow, for the defendants.
   The judgment of .the court was pronounced by

King, J.

The plaintiffs, Hall and Robertson, the latter representing himself to be the trustee of the Commercial Bank of Natchez, and the remaining plaintiffs representing themselves to be the trustees of the Planters’ Bank of Mississippi, epjoined the execution of two writs of fieri facias, on the allegation that the sheriff was about to sell the property seized without an appraisement, which would expose them, os junior mortgagees, to loss. A motion was made to dissolve .the injunction on the face of the papers, on the ground that the plaintiffs had not made the oath, nor furnished the bond required by law. The motion was sustained, and the injunction dissolved with damages.

The plaintiffs have appealed.

The affidavit upon which the injunction was granted, was made by Robertson alone, and is as follows : “ Declares that the facts set forth in the foregoing petition for injunction so far as they are stated as of his own knowledge, are true, and so far as they are stated as derived from the information of others, he believes them to be .true.” It is objected to this affidavit, that it is vague and uncertain, and does not show that Robertson, who made it, is the trustee of the Commercial Bank, nor that he is the agent of Hall or of the remaining defendants, who are trustees of the Planters’ Bank.

As far as relates to the Commercial Bank of Natchez, the oath of Robertson, one at the ¡trustees, is sufficient. A reference to the petition shows that none °f th0 facts 'averred are stated as having been derived from the information of others, and the petitioner must be understood as having deposed to the truth of all his allegations. His quality of trustee, is stated in the petition, to which the oath is appended, and it was not necessary that it should be repeated in the affidavit.

The objection taken that, Robertson does not appear, either from the petition or affidavit, to have acted as the agent of the remaining parties plaintiff, who represented separate and distinct interests, is well taken. Those parties could only have claimed an injunction upon swearing to the truth of the allegations on which they relied as authorizing a resort to the remedy, and on giving the bond required by law. They have neither taken the required oath, nor joiued in the bopd, and as to them the injunction was properly dissolved.

But as the allegations of the petition are to be .taken ,ns true on a motion to dissolve, we must take the fact to be as alleged .that the sheriff was about to sell irregularly, and although the trustees of the Planters’ Bank had not fulfilled .the prerequisites for an injunction, and it was properly dissolved as to them, we are not prepared to sustain the decree of one percent damages, even as to them, but will leave the question of damages open as to all the parties.

Robertson, however, furnished the bond and security required by the judge. • It is true that he is not described in the instrument as the trustee .of the Commercial Bank of Natches, hut he is sufficiently identified with the plaintiff in the suit, by that part of the bond reciting the condition on which it is given, in which it is said: “ That whereas William Robertson and others have this day presented a petition te tho Tenth District Court,” etc. We think that Robertson and his sureties are bound upon the bond, and that the defendants may recover upon it,..if it should bo found that the injunction has wrongfully issued. As regards the Commercial Bank, we think the judge erred in dissolving the injunction upon tho face of the papers.

It is, therefore, decreed that so much of the judgment appealed from as dissolved the injunction as to the plaintiffs Hall, and the trustees of tho Planters’ Bank of Mississippi, be affirmed; and in other respects that the said decree be reversed, and the cause remanded to be proceeded with according to law, the defendants paying the costs of this .appeal; the question .of damages -being reserved.  