October 5, 2012

Yantis v. Lyon, Rockcastle, 1830

Yantis vs. Lyon.

COURT OF APPEALS OF KENTUCKY

26 Ky. 152; 1830 Ky. LEXIS 2; 3 J.J. Marsh. 152

January 1, 1830, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle Circuit; JOSEPH EVE, Judge. 

DISPOSITION: Reversed and remanded, with instructions. 

COUNSEL: Anderson, for plaintiff. 

OPINION

 [*152]  The CHIEF JUSTICE delivered the opinion of the Court.

THE only question presented in this case is, whether the circuit court erred in refusing to decree ten per cent. damages, on the dissolution of the injunction.

The injunction injoined the enforcement, by execution, of a replevin bond. The complainant was a surety in that bond. The injunction was dissolved on the bill and answer. Nothing occurred after the granting of the injunction, which would justify the court in withholding  [*153]  the damages. It was proper to dissolve; and in such a case as this, the chancellor has no discretion. The act of 1799, (II. Dig. 670,) is imperative. The bill was also dismissed, and, therefore, this writ of error will lie.

Wherefore, the circuit court erred, in not decreeing ten per cent. damages, on the dissolution of the injunction; and, therefore the decree, so far as it with-held the damages, is reversed, and the cause remanded, with instructions to decree to the plaintiff in error, ten per cent. damages, on the amount injoined.

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