
    Hammonds v. Belcher and others.
    The damages sustained by the defendant by reason of the issue of an injunction may be pleaded in rcconvention in the same suit. (Note 49.) ,
    The statute (Iiart. Dig., art. 1(501) evidently contemplates that the assessment of damages may be simultaneous with tho dissolution of the injunction; and when they are to be assessed by tho court for the want of probable cause, there is no doubt judgment for them should be immediately rendered. But when the injunction has operated on other matters than the collection of money, questions of difficulty as to tho damages occasioned by the injunction may ariso; and, as the statute has not positively required them to bo tried with the main action, on penalty of being excluded from subsequent cognizance, we are of opinion that the defendant could rightfully prosecute a separate action to have tho question of damages and their amount adjudicated.
    Appeal from Busk. John Belcher, one of the appellees, obtained an injunction to restrain Hammonds, the appellant, from using and carrying on a ferry established by him across the Sabine river in the vicinity of one previously opened by the said appellee. This appellee, as principal, with tho other appellees, executed the usual bond preliminary to tho issue of the writ; and the injunction having been dissolved, this suit was brought on the bond to recover damages for wrongfully and vexatiously suing out and prosecuting said writ. Exceptions to the petition were sustained. The on-ly question was whether an original action could be brought on tho bond, or whether the damages (if the appellant had suffered any) should have been assessed in the first action between the parties.
    
      M. Casey, for appellant.
    The only question at present to be considered is, can a suit upon an injunction bond be sustained?
    Although the statute says (Hart. Dig., art. 1602) “ that when an injunction “restraining the collection of money is dismissed the court shall asses? the “damages,” “and in all other eases the damages shall be assessed by “a jury sworn for that purpose,” yet it is not made imperative that the damages should be assessed by a jury at the same time at which the subject-matter in litigation and enjoined is decided against the plaintiff. Hence it is conclusive that those damages may bo recovered at any other time by suit on the bond.
    When the appellee brought suit against the appellant for the franchise of the ferry, the appellant could not plead by set-off or in rcconvention the amount of damages which he had sustained by tho interruption of the franchise, because those damages were unliquidated and not founded in contract, but arising from a tort or unfounded right claimed by the appellee.
    Suppose the appellee should have dismissed the first suit before trial, then the appellant could have no recovery except on the appellee’s bond, and suit should have beou brought on that alone, otherwise the appellant may be interrupted at any time, and incalculable injury, amounting to a total deprivation of the franchise, may be done to him without any possibility of redress.
    
      J. Armstrong, for appellees.
    The court below did not err in sustaining ap-pellees’ exceptions to appellant’s petition. Appellant’s only remedy against appellee and his securities on the injunction bond is given by article 1002, (Hart. Dig., p. 495.) And having failed to pursue that remedy in the proper manner, and at the proper time when the injunction was dissolved, ho was forever after precluded.
    Everything could have been adjudicated between the parties and all the appellant’s rights attained when the injunction was dissolved. When tins is the case, lie is barred from a second action for the same cause. (Foster v. Wells, 4 Tex. R., 104.)
   Hemphill, Ch. J.

The appellant’s counsel has examined the sub-jeet with ability and a commendable degree of research, and has suggested points which, if time permitted, would insure a more extended discussion than can be afforded to them.

We cannot assent to his position that the appellant could not, in the first suit, have pleaded by way-of roconventioh the damages arising from the injunction. These grow out of the transaction or claim which furnished the grounds of the suit; they are incidental to it, and maybe pleaded and tried with tlie main cause. This point has been settled in the analogous case of Walcott v. Hendrick, 6 Tex. R., 406.) But though defendants) on general principles, in cases of this character, have the privilege of asserting their claims for damages in tlie principal action, yet this is not an imperative exaction, and does not debar them of the right to maintain a separate suit.

Tlie difficulty in cases of injunction arises, however, from the provisions of the statute, which, it is contended, authorizes the defendant to have his damages assessed in the main suit, and consequently restricts him to tlie remedy thus provided. The statute requires a bond in a sum sufficient to secure the matter to be enjoined and all damages and costs that maybe occasioned by the injunction, conditioned that the plaintiff will abide the decision and pay all sums of money and costs that shall bo adjudged against him, (Art. 1601;) and, upon the dissolution of the injunction, either in tlie whole or in part, when the collection of money has been enjoined, if the court be satisfied that the injunction was obtained for delay, damages shall be assessed by the court at ten percent. on the amount released by the dissolution outlie injunction ; and in all other cases the damages shall be assessed by a jury sworn for that purpose; if neither party require a jury, the damages may be assessed by the court. -The statute evidently contemplates that the assessment of damages may be simultaneous with the dissolution of the injunction, and, when they are to be assessed b3rthe court for the want of probable cause, there is no doubt judgment for them should be immediately rendered. Tire amount is fixed by law, and the court has only to declare tlie sentence of law in form. But when the injunction Iras operated on other matters tiran the collection of money, questions of difficulty as to the damages occasioned by the injunction may arise; and as the statute has not positively required them to be tried with the main action, on penalty of being excluded from subsequent cognizance, we are of opinion tlrat the defendant could rightfully prosecute a separate action to have the question of damages and their amount adjudicated. The issue as to the amount and legal grounds for damages is distinct from though connected with the main action, and it might be inconvenient to the defendant, and perplexing,- perhaps, to botlr parties, to controvert the issue as to damages at tire time of the trial of the principal matter in litigation. His .right, independent of the statute to bring an action on the bond, is secured in general principles of law; and though a'special provision is made for the assertion of his claims under the bond, yet that does not operate as a preclusion of his general right, the statute containing no terms of prohibition, either expressly or by implication. Judgment reversed and cause remanded.

Reversed and remanded.

Note 49. — Carlin v. Hudson, 12 T., 202.  