Ferguson v. Tipton

40 Ky. 28, 1 B. Mon. 28, 1840 Ky. LEXIS 67

• Court: Court of Appeals of Kentucky
• Decided: October 21, 1840
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion- of the Court.

The condition of the Injunction bond, being in this case, as in that of Ashby vs Tureman, (3d Littell’s Rep. 6,) only that the obligors would pay all costs and damages that might be awarded,■ we are of the opinion that the Circuit Judge did not err in instructing the juiy, in this suit on that bond, that the plaintiff was not entitled to recover any portion of the judgment which was enjoined. The surety cannot be bound beyond the import and legal effect of the condition as written, and that clearly embraces and refers to only such costs and damages as should be awarded on a dissolution of the injunction. The culpable omission by the clerk to include the payment of the judgment also, in the condition, which it was his duty to do, cannot change or affect the constructive or legal effect of the obligation resulting from the actual condition of the bond as signed by the obligors. But had we any doubt on this point, the express decision on the same point in Ashby vs Tureman, supra, would not be disregarded.

Wherefore, the judgment of the Circuit Court is affirmed.