Randall v. Carpenter

The defendants mistook their remedy. The ■ insolvency of one of the sureties upon the injunction undertaking, was no ground for staying plaintiff’s proceedings generally. The temporary injunction could have been dissolved, unless a new and sufficient surety were supplied. But that was all. The action was not dependent upon the provisional remedy. The granting or withholding of the latter was a matter of discretion. But the prosecution by the plaintiff of his action was a matter of right.

The order should have directed that the injunction be dissolved, unless the plaintiff file a new undertaking as directed in the present order, within a specified period. A modification to that effect may now be made, and the order is so modified without costs of the motion, or of this appeal.

Order modified as directed in opinion, without costs of the motion, or of the appeal.