{
  "id": 5236897,
  "name": "William Brownfield et al. v. Thomas Brownfield",
  "name_abbreviation": "Brownfield v. Brownfield",
  "decision_date": "1871-01",
  "docket_number": "",
  "first_page": "152",
  "last_page": "154",
  "citations": [
    {
      "type": "official",
      "cite": "58 Ill. 152"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "36 Ill. 268",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5215988
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/36/0268-01"
      ]
    }
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  "last_updated": "2023-07-14T20:15:34.935712+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "William Brownfield et al. v. Thomas Brownfield."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Thornton\ndelivered the opinion of the Court:\nSuit was brought on an injunction bond, with a penalty of $1,000, which contained this condition:\n\u201c How, therefore, the condition of the above obligation is such, that if the above named complainants, their executors, administrators, or any of them, shall, and do well pay, or cause to be paid, to the said Thomas Brownfield, his executors, administrators or assigns, all such costs and damages as shall be awarded against the complainants, in case this injunction be dissolved, then the above obligation to be void, otherwise to remain in full force and effect.\u201d\nBesides the bond and record of the proceedings, the proof submittted, was, that defendant in error had paid attorneys\u2019. fees in defending the suit enjoined, to the amount of $2,700. The injunction was dissolved, and costs were adjudged against the complainants, but no damages. It was admitted that the costs had been paid.\nThe court below rendered judgment for the penalty of the bond.\nThe injunction, in this case, ivas not granted to stay a judgment at law, but to restrain the obligee from \u201c claiming and using certain personal and real estate.\u201d As the injunction was' not issued under the statute, there is no prescribed rule in regard to the amount or condition of the bond. This is left to the discretion of the judge, or master, who may grant the writ. The condition might have been such as to include necessary counsel fees which were paid in defending the injunction.\nThe important question is, is there a breach of the condition until there is an award of damages? Can the damages be awarded in a suit on the bond, when there was no award of damages on the dissolution ? Must not the breach, in fact, exist before the institution of the suit ?\nThe language of the condition is, that the obligors \u201c pay all such damages as shall be awarded against the complainants, in case the injunction shall be dissolved.\u201d Upon suggestions in writing at the time of the dissolution, the court would have assessed damages. The statute provides, that in all cases where an injunction is dissolved, the court, after such dissolution, and before final disposition of the case, upon suggestion of the party claiming damages, shall hear evidence and assess such damages to the party damnified as the case may require, and may award execution therefor. (Sess. Laws 1861, 133.)\nIt was the duty of the party damnified to suggest his damages at the time of dissolution, and if they were not paid or collected in due course of law, the'obligors would be liable on their bond.\nAccording to the condition, the damages must be awarded\u2014 adjudged\u2014\u201c against the complainants.\u201d James Myers, one of the obligors, was not a complainant, but merely the security of the complainants. His liability attached, only on condition that complainants failed to pay the damages awarded. Hone were awarded, and therefore there was no failure, and no breach of the condition.\nIn actions on such bonds as this, the penalty is not recoverable. The judgment should be for the penalty, to be discharged upon the payment of the damages assessed. Ho damages can be assessed if there be no breach, and the breach \u2014the violation of the obligation\u2014must precede the institution of the suit upon the bond. In this case, as no damages were awarded prior to the trial, there was no breach at the time of the commencement of the suit. Heither the principal obligors nor their security could comply with the condition of the bond. They could not fix their own liability, and the obligee had failed to have it determined by the judgment of the court. It would be an anomaly to hold a party liable for what he could not discharge without the necessity of a suit to determine his liability. The failure to have the damages awarded at the time of the dissolution of the injunction, prevents any recovery upon the bond. Roberts v. Fahs, 36 Ill. 268.\nThis view is sustained by a consideration of the statute referred to. This confers full power upon the judge, to award damages upon the dissolution of the injunction. There the power is best reposed. The bond is held as security for the non-payment of the damages.\nThe objection is made by counsel for defendant in error, that there is no record of the evidence before us, as the bill of exceptions shows that it was signed at a term after the trial. It was, however, directed to be prepared at the subsequent term, by the judge, by an entry on the record. There is no force in the objection.\nThe judgment is reversed and the cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Thornton"
      }
    ],
    "attorneys": [
      "Mr. C. B. Smith, for the plaintiffs in error.",
      "Mr. Wm. B. Webber, for the defendant in error."
    ],
    "corrections": "",
    "head_matter": "William Brownfield et al. v. Thomas Brownfield.\n1. Injunction bond\u2014when condition broken. Upon suing out an injunction to restrain the defendant from \u201c claiming and using certain personal and real estate,\u201d an injunction bond was given, the condition of which provided for the payment of \u201c all such costs and damages as should be awarded against the complainants in case the injunction should be dissolved Held, there could be no recovery upon the bond except for such damages as may have been awarded by the chancellor on the dissolution of the injunction, in the mode provided by the act of 1861.\n2. Injunction\u2014practice on dissolution. In such case it is the duty of the party damnified by the granting of an injunction, at the time of its dissolution to suggest his damages, and have the same adjudged to him by the court, and failing to do so, he is estopped from a recovery on the bond.\n3. Bilb op exceptions\u2014when may be signed. A bill of exceptions may be signed at a term of court subsequent to the trial, when the record shows that it was, by the courts, ordered to be presented at that term.\nWrit of Error to the Circuit Court of Champaign county; the Hon. A. J. Gallagher, Judge, presiding.\nMr. C. B. Smith, for the plaintiffs in error.\nMr. Wm. B. Webber, for the defendant in error."
  },
  "file_name": "0152-01",
  "first_page_order": 154,
  "last_page_order": 156
}