Wanless v. West Chicago Street Railroad

77 Ill. App. 120, 1898 Ill. App. LEXIS 33

Opinion

Mr. Justice Windes

delivered the opinion of the court.

We are of opinion that the learned trial judge erred in holding defendant’s proposition of law and in refusing the counter proposition of plaintiffs.. Defendant in error saw fit to depart from the'statute which required a bond conditioned to pay “such damages as may be awarded against the complainant in case the injunction is dissolved,” and gave its bond conditioned to pay “ all damages which may be sustained by said defendants by reason of the wrongful issuing of such injunction, and also such costs and damages as shall be awarded against the said complainant,” etc.

The bond is a voluntary bond, given on a good consideration—to wit, the issuing of the injunction—and is binding on defendant in error as such. Had it confined itself to giving the bond required by the statute, and as ordered by the court, a more difficult question would arise. Ballingall v. Carpenter, 4 Scam. 306; Pritchell v. People, 6 Ill. 530; Barnes v. Brookman, 107 Ill. 322.

These cases are decisive of the case at bar, and the judgmént will be reversed and the cause remanded.