majority">Bullard, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment, dissolving in part, an injunction sued out by him, and condemning him to pay interest and damages.

The injunction was granted under the following circumstances : Martha Hart having recovered a judgment against the present appellant, by which a plantation and certain slaves were ordered to be sold ; the latter took a suspensive appeal which was afterwards dismissed by the Supreme Court, on the ground, that it was not made returnable at the proper term of the court. See Louisiana Reports, 481. *482A second appeal was afterwards allowed, which is yet pending-, but the judge refused to take a sufficient, bond to authorize a stay of execution, which accordingly issued on the original judgment notwithstanding the second appeal. The injunction in question, was issued on the allegation of the above facts; and further, that six other slaves not mentioned in the judgment had been seized by the sheriff.

On a motion injunctionVon its face, the facts stated in the petition are to be taken as tiue.Where a sus-toke^atíd^dis-missed; its effect second6’ appeal taken withm the year does not suspend the ope-judgment ap-Such^a suspension can only follow an appeal taken within ten fieation^of judgment.

On a motion to dissolve the injunction, the judge very properly considering that the facts stated in the petition must j-,e taken as true, and that six slaves, not ordered to be sold, 3 7 ... had been seized under the writ, perpetuated the injunction ag ^ them, and dissolved it as relates to the others, and condemned the plaintiff in the injunction to pay damages, under the statute of 1831.

The appellant has made two points before this court: 1st. That the original bond given in the appeal within ten days after the rendition of the judgment, remained in force until there should be a final or definitive judgment on the appeal, and that its dismissal on technical grounds only, operated as a non-suit, and not against bringing up the appeal on a second application, and that all the original rights of the appellant are secured by the second appeal; and 2d. That no damages ought to have been given, inasmuch as the appellant succeeded in having the injunction perpetuated, as to a part of the slaves seized.

I. Under the first point it has been urged, that the appellant presents a case of strong equity ; that he did all in bis Powe1'to bring his appeal regularly before the appellate court ; that the point of practice settled in his case, was a new oneand that he has a legal right to an appeal, which OUorht not t0 jjg defeated by errors or inadvertencies of others o j without his fault. It is true the party has a right of appeal, which, by a construction lately given to the Code of Practice by this court, has not been lost by the dismissal of his first appeal, on the motion of his adversary. But it is equally rr . 1 . true, that an appeal does not necessarily imply a suspension *be effects of the judgment first rendered. Such suspension can only follow an appeal taken within ten days after *483notice of judgment, and upon giving bond with surety according to law.

Damages will not be awarded if an injunction be wrongfully sued out as to a part of the demand, and sustained as to a part. In case of partial success, the plaintiff in injunction should not be visited with the same penalty as if lie had been wholly in the wrong.

The equity on the side of the judgment creditor is equally strong. He has a judgment in his favor which he has a legal right to enforce, unless a suspensive appeal be taken in the form, and upon the conditions required by law. We cannot yield our assent to the proposition, that the judgment of this court, dismissing the first appeal, is not final in that case, although the original judgment may be still open to revision upon its merits, on the appeal now pending, but it is certainly not the same appeal; nor would the appellant have been entitled to stay the execution, even if the judge had accepted a new bond for the amount offered, because the ten days had already expired. While we are disposed to give to the right of appeal all the latitude of which it is susceptible under the constitution and laws, we think ourselves bound to require a compliance with the forms and conditions, which, by law, regulate that right.

II. The act of 1831, under which the appellant was adjudged to pay damages and interest, has always received from this court a rigorous construction. It authorizes the court to pronounce judgment in the same case against the principal and surety on the bond, in case the injunction is dissolved. But it makes no provision by graduating the penalty for a case like the present, in which the injunction was partially maintained. By proceeding in an illegal manner to execute the judgment, the defendant rendered the interference of the court proper and just. Where the plaintiff in ordinary cases succeeds as to a part of his demand, he is entitled to costs ; and we can see no good reason why, in a case of injunction, in the event of partial success, he should be visited with the same penalty as if he had been wholly in the wrong, nor can we suppose the legislature so intended.

The judgment of the District Court, is therefore, reversed 5 and ours is, that the injunction be maintained as to the six slaves not named in the judgment, and that it be dissolved as to the balance of the slaves seized, and that the defendant pay the costs of both courts.

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