
    Ragan & Buffet v. H. M. Aiken.
    SUPREME Court Practice. Dismissal of injunction bill. Demand. Upon the dismissal of an injunction bill by decree of this court, the injunction bond being conditioned to pay such costs and damages as the court may order, the defendant is entitled to a reference to ascertain the damages, for which purpose the cause will be remanded to the chancery court.
    FROM HAWKINS.
    Appeal from the Chancery Court at Roge'rsville. H. C. Smith, Ch.
    Shields & Shields, Kyle & McDermott and J. B. Heiskell for complainants.
    
      ~W. P. Gillenwaters and A. D. Huffmaster for defendant.
   Cooper, J.,

delivered the opinion of the court.

The bill in this case having been dismissed at this term upon demm’rer. the defendant moves the court for judgment against the complainants, and their sureties, on the injunction bond executed in accordance with the fiat' of the chancellor granting an injunction.

The bill prayed that an injunction issue to restrain and inhibit the defendant “from charging on the goods shipped to complainants any higher rate than 5|- cents per hundred pounds, and from discriminating in his charges on freights transported over his road in favor of other merchants and against complainants”

The chancellor directed the injunction to issue upon, the complainants executing bond with good • security in the sum of one thousand dollars, conditioned as the law directs. The bond was given conditioned for the payment of all such costs and damages as may be awarded and recovered against the complainants in any suit or suits which may be hereafter brought for wrongfully suing out said injunction, and shall moreover abide by and perform such orders and decrees as the court may make in this cause, and pay such costs and damages as the court may order. The usual condition of the bond, when a judgment is not enjoined, is prescribed by the Code, sec. 4439, sub sec. 2, “to pay costs and damages awarded by the chancery court in dismissing the bill.” And this condition is substantially contained in the last clause of the condition of the bond as above. And by Code, sec. 4442, the damages may be ascertained by the court in which the cause is heard and bill dismissed, upon reference to the clerk and master, or upon an issue of fact made up and tried as other issues of fact.

The decree of this court is the decree which the chancery court should have made, and did actually make in this case, and is, within the meaning of the statute, the decree of that court. The defendant is entitled to his reference to ascertain the damages, and for this purpose the cause will be remanded to the chancery court for proceedings accordingly.  