216 F. 807 | E.D. Va. | 1914
(after stating the facts as above). Three questions are presented for the consideration of the court: First, what is the true meaning of the bond in question, and the liability of the surety thereunder to the defendant, Jones; second, whether the petitioners Miller and Brown are entitled to recover thereunder the amount of the costs, respectively, allowed in their favor, and set up by them in their petition; and, third, whether any recovery under the circumstances could properly be had upon the bond. These will be disposed of in the order named.
A careful consideration of the two cases last cited, make it entirely clear that injunction bonds to pay “such damages as may be sustained” do not mean to pay such sum as the court may decree to be paid on the merits' of the case (certainly unless it can be shown that the collection of the debt was defeated in whole or in part by the delay caused by the injunction), but, on the contrary, cover only the damages and costs directly sustained as the result of suing-out the injunction if the same should be dissolved.
The language “to abide the judgment of the court” in an injunction bond, while not generally used, is by no means new or unusual. Its insertion arises from the inherent power of the court in its discretion to grant or withhold injunctions, and to impose terms and conditions upon which the same may be either awarded or refused; that is to say, in granting to the complainant an injunction or withholding the same at the instance of the defendant, the court can impose such terms as will tend to secure the ends of justice. Russell v. Farley, 105 U. S. 438 et seq., 26 L. Ed. 1060, supra. The requirement, however, to abide the decision of the court ought not to be construed to afford any relief to which the party has not shown himself entitled, either under that or some other provision of the bond. The greatest latitude that should be given to the meaning of the particular words would be that which would enable the court to do justice between the parties litigant, and in the present case their use need be given but little added weight, so far as the merits of this case are concerned, the exact language of the bond being “to abide the decision of said court, and to pay all damages and costs in case the injunction be dissolved,” etc. The ordinary use of the language “to abide the order of the court”
It follows from what has been said that a decree may be entered against the defendant Joseph W. Woolfolk and the American Surety Company of New York under the injunction bond referred to, for the amounts heretofore ascertained, in favor of the defendant Jones for $3,835.33; to the petitioner Miller $2,500, and to the petitioner Brown ¿310.15. The decree in favor of said Jones should provide that any sums received by him on account of interest by way of damages under this decree should be credited on his judgment against Woolfolk in the equity suit.