¶1The judgment of the court was pronounced by
¶2The petitioner avers that, he was endorser on the note of William Brown, due- in’1837; that, in 1840; ha-ving’been’appiied to as-endorser by the defendants-, then holders of the note, he took- up William Brown's note by giving his own-note payable in 1841; that he was afterwards sued on this latter note, and snfferred judgment to go against him ; and that, upon exe1-eution, certain property belonging-to him was sold, of which he became the purchaser on twelve-months’ bond, upon which bond-aseizure has issued. He further avers that in all these matters he has acted.under error; that in fact he had been discharged as endorser of the original note by the laches of the holders in not giving.him notice-of- protest, of which discharge he was ignorant.- Upon these allegations an injunction was obtained, which the- defendants moved to dissolve.
¶3There is clearly no equity in the petition.. Besides’the fact that judgment was obtained upon the new note, without defence, the validity of which judgement was recognised by the purchase and execution of the twelve-months’ bond, a course by which, the plaintiff probably precluded himself from relief, there is another consideration which fully justifies the dissolution of the injunction. The plaintiff giv-es no account whatever of the note of William Brown, which he received, and for whioh he substituted his own, and does not produce and tender it. If the new note is to be cancelled, how can he ask this equitable relief without restoring the defendants to their original rights? Non constat that the plaintiff may not have collected the note from the maker, or otherwise disposed of it.
¶4The court below, in dissolving the injunction, gave judgment in favor of Lambeth & Thompson, for $150, “special damages, for counsel, fees, sustained by them.” It is said by the plaintiff that in this there is error; that counsel fees cannot be allowed as special damages, unless it be proved that the fees have been paid.
¶5The statute of 25th March, 1831, s. 3, declares that, in case the injunction is dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of ten per cent per annum on the amount of the judgment, and not more than twenty per cent as damages, unless damages to a greater amount are proved. In the present case, the sum of $150 was the only amount allowed to the defendants. As it does not exceed twenty per cent upon the judgment enjoined, and as up to that amount the judge was authorised to grant damages without proof, we see no reason to disturb the judgment.
¶6Judgment affirmed.