ditions upon the party at whose instance it proposes to act as equity may require.16 But an injunction granted without a bond is not void, but merely irregular; and if it is executed properly subsequent to the hearing, it will be sufficient.17 It is no ground to justify an appellate court to reverse the order granting an injunction that it was made through inadvertence before a bond was given.18 In any case where the court requires a bond, until it is executed properly, the injunction is without efficacy.19 The injunction should not be dismissed or dissolved merely because of the insufficiency of the bond.20 It is always within the power of an equity court, if the litigation is prolonged, to require an additional security to protect the defendant.21 Where no restraining order is asked preceding the final decree or judgment, it is not usual to require that a bond be given.22

If an injunction bond is executed by a surety belonging to a class which the law prohibits from signing, as for example, an attorney, no recovery can be had against him.23

On the dissolution of an injunction, or in the event it is refused, and the complainant gives a bond conditioned to pay the defendant damages resulting until the decree denying the injunction can be reviewed by an appellate court, the lower court being affirmed subsequently, no judgment on the bond is entered usually; but the parties aggrieved must resort to an action at law against the principal and sureties upon the bond.24 In the Federal courts, however, it has been held that since the court granting the injunction has jurisdiction of the original case, it may ascertain the damages and enforce payment against the sureties summarily, if they have a day in court before the

16 Russell v. Farley (1881) 105 U. S. 433, 26 L. Ed. 1060.

17 McKay v. Chapin (1897) 120 N. C. 159, 26 S. E. 701.

18 Chesapeake & Ohio R. R. Co. v. Patton (1872) 5 W. Va. 234, 238. 19 Pell v. Lander (1848) 47 Ky. 554, 556.

20 Gamble v. Campbell (1855) 6 Fla. 347, 351.

21 Crawford v. Paine (1865) 19 Ia. 172.

22 Lake Erie & W. R. Co. v. Cluggish (1896) 143 Ind. 347, 42 N. E. 743, 745.

23 Dennett et al. v. Reisdorfer et al. (1902) 15 S. Dak. 466, 90 N. W. 138.

24 Offerman & Western R. R. Co. v. Waycross Air-Line R. Co. (1901) See 112 Ga. 610, 37 S. E. 871. Sorter v. Strassheim (1885) 8 Colo. 185, 6 Pac. 215.

amount has been fixed.25 Chancery will do complete justice between the parties before it. Liability of the plaintiff for damages may be assessed, and the decree enforced against him; but if satisfaction is not complete, resort may then be had upon the bond.26

So long as the law affords an adequate remedy, equity will not assume to give relief on the injunction bond. But if a multiplicity of suits is threatened, or there would be unreasonable delay or expense in an action at law, or a trust is involved, equity will take jurisdiction.27

A surety who undertakes that his principal will comply with the judgment, is concluded by it as to all matters determined therein, though not a party to the action.28

§ 305. Amount recoverable upon the bond. The penalty of the bond is the maximum recoverable by the obligee against the sureties.29 If no injury is suffered as a consequence of the injunction, no damages will be assessed.30 Recovery can be had for injury which is the proximate result of the injunction; but

25 Russell v. Farley (1881) 105 U. S. 433, 26 L. Ed. 1060. See Leslie v. Brown et al. (1898) 90 Fed 171, 174, 32 C. C. A. 556; Tyler Mining Co. et al. v. Last Chance Mining Co. (1898) 90 Fed. 15, 32 C. C. A. 498.

In Spencer et al. v. Sherwin, Judge (1892) 86 Ia. 117, 53 N. W. 86, 87, it was said: "The rulings of courts on this question are in several states controlled by the peculiar provisions of their statutes; as when provision is made on the dissolution of the injunction for a reference to ascertain damages, in which case it is held that notice to the surety is desirable, even if not strictly necessary. The weight of authority undoubtedly is that in case of a bond conditioned like that in controversy, and in the absence of express statutory provi

sions authorizing it, the court cannot, in the original action, assess damages against the sureties. The proper mode in such cases is by an action directly on the bond, which affords the sureties opportunity for a day in court."'

26 Sturgis et al. v. Knapp et al. (1860) 33 Vt. 486.

27 Oelrichs et al. v. Spain (1872) 15 Wall. 211, 21 L. Ed. 43; Ruble v. Coyote Gold & Silver Mining Co. (1881) 10 Oregon 39.

28 Shenandoah National Bank v. Read (1892) 86 Ia. 136, 53 N. W. 96.

29 Nansemond Timber Co. V. Roundtree et al. (1898) 122 N. C. 45, 29 S. E. 61; Selectmen of Glover v. McGaffey et al. (1883) 56 Vt. 294.

30 Uhrig v. City of St. Louis (1871) 47 Mo. 528.

none for remote elements, as loss of credit.31 A reasonable sum for the plaintiff's trouble and expense in procuring the dissolution of the injunction is proper.82 No recovery can be had on a bond for an injunction, ultimately dissolved, restraining the opening of a street, for damages alleged to have resulted because the value of the land plaintiff was enjoined from selling depreciated during the period the opening of the street was delayed.88

There is a conflict on the question whether the defendant can recover on the plaintiff's bond for attorney fees after it has been determined that the injunction should not have been granted. The first case involving the point decided by the United States Supreme Court held that no attorney fees could be recovered. Such is yet the Federal rule. The reasoning was that attorney fees are allowed in no other class of equity cases; that there would be danger of abuse were recovery permitted; the tendency would be to employ more counsel than necessary; reference to a master to ascertain the fees allowable might protract the case, which is opposed to sound public policy.34

However, many jurisdictions permit the recovery of attorney fees on the theory that the outlay is the direct consequence of the plaintiff's act in obtaining the injunction. The aid of counsel is necessary to have it terminated. The intention of the parties, as expressed in the bond, is to include such attorney fees as part of the damages.35

31 San Jose Fruit-Packing Co. v. Cutting (1901) 133 Cal. 237, 65 Pac. 565; Elms v. Wright-Blodgett Co., Ltd., et al. (1901) 106 La. 19, 30 So. 315; Brown et al. v. Jones (1870) 5 Nevada 374, 376.

32 Pargoud V. Morgan et al. (1830) 2 La. 99, 102.

33 Steuart v. State of Maryland to Use of Shipley (1863) 20 Md. 97.

84 Oelrichs et al. v. Spain (1872) 15 Wall. 211, 21 L. Ed. 43; Tullock v. Mulvane (1902) 184 U. S. 497, 511, 22 Sup. Ct. 372, 46 L. Ed. 657; Stringfield et al. v. Hirsh et al. (1895) 94 Tenn. 425, 29 S. W. 609,

45 A. S. R. 733; Jones et al. v. Rosedale St. Ry. Co. (1889) 75 Tex. 382, 12 S. W. 998.

85 Bush v. Kirkbride et al. (1901) 131 Ala. 405, 30 So. 780; Montgomery v. Gilbert et al. (1900) 24 Mont. 121, 60 Pac. 1038; Cook v. Chapman (1886) 41 N. J. Eq. 152, 2 Atl. 286.

Even where attorney fees are allowed, a city attorney, who defends an injunction against the city, cannot have a portion of his annual salary charged as part of the costs. Uhrig v. City of St. Louis (1871) 47 Mo. 528.

What may be considered as modified view is that of the Ohio court, which announced the right to recover attorney fees in this language:

"The true rule would seem to be, under an undertaking like the one in this case, that where reasonable attorney fees and expenses are necessarily incurred alone in procuring the dissolution of an injunction, when it is the sole relief sought by the action, or is merely ancillary thereto, and it is finally decided that it should not have been granted, such fees and expenses may be recovered in an action on the undertaking; but where the injunction is only auxiliary to the object of the action, and the liability is incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, no recovery can be had on the undertaking for the attorney fees and expenses occasioned thereby." 36

Action may be brought in a state court upon an injunction bond given in a United States court; but the liability of the sureties thereon for attorney fees presents a Federal question, and is to be determined by the Federal rule, although the bond was executed and suit brought thereon in a state allowing recovery for attorney fees.87

§ 306. Receivers' bonds. Courts exercising chancery powers have authority to appoint receivers to prevent fraud or to protect property, which is the subject of litigation, from material injury. The receiver is an indifferent person between the parties, appointed on their behalf by the court, to receive the property pending suit.88 He becomes an officer of the court. In the absence of statute, he cannot be sued for his acts as receiver without leave of the court.39 But by legislation a receiver may be sued without procuring such leave of the court." 40

36 Noble v. Arnold (1872) 23 Oh. St. 264, 270-271. Approved in Riddle et al. v. Cheadle (1874) 25 Oh. St. 278.

87 Tullock V. Mulvane (1902) 184 U. S. 497, 22 Sup. Ct. 372, 46 L. Ed. 657; Drainage District No. 2 of Dakota County v. O'Neill et al. (1922) 109 Neb. 552, 191 N. W. 685.

88 Baker et al. v. The Administrator of Backus (1863) 32 Ill. 79, 96.

39 Barton v. Barbour, Receiver (1881) 104 U. S. 126, 26 L. Ed. 672.

40 Gableman v. Peoria, D. & E. R. Co. (1900) 179 U. S. 335, 21 Sup. Ct. 171, 45 L. Ed. 220; Smith v. Jones Lumber & Mercantile Co. et al. (1912) 200 Fed. 647.

Courts have the authority to require the execution of a bond conditioned upon the faithful performance of the duties of the receiver. Unless dispensed with, the receiver is not entitled to possession of the property until the undertaking has been executed; 1 but the court will not usually dispense with the bond even though the parties consent to it.42 Where a temporary receiver, who has given a bond, is continued later by order of the court as a permanent receiver, further security may be required, but unless ordered to be given, the previous undertaking as a temporary receiver is sufficient.48

An erroneous order of the court that if the defendant will give a bond, the motion for a receiver will be denied, will not relieve the obligors thereon from responsibility for breach of their undertaking, since it is good as a common law bond." The same conclusion is reached where the receiver's bond is not in the form provided by the statute, but is voluntarily executed. 45

§ 307. Sureties' liability on receivers' bonds. In the absence of statute, the equity practice is that one who has been damaged by the failure of the receiver to discharge his duties,

41 Edwards v. Edwards (1876) 2 Ch. D. 291, 296.

42 Manners v. Furze (1847) 11 Beav. 30, 50 Eng. Reports Reprint 727.

43 "It is undoubtedly true, as a general rule, that a receiver, before interfering with the assets, must furnish his bond. . . The judg ment recites that 'Thomas Jones, heretofore appointed the receiver of the corporation, is hereby continued as the permanent receiver.' The court is thus dealing with its own officer in charge of assets, and with his bond on file. If a further bond were deemed proper, the court had ample power to direct it to be given.

When the court continues in office its receiver already in possession of the assets, with his bond

duly executed and on the files, it is fair to assume that the security is deemed satisfactory if a further bond is not required. In the case before us, the temporary receiver was authorized to sue by order of the court, and the final judgment reaffirmed the order. We therefore hold the receiver entitled to sue, and that, while a further bond may be exacted, in the discretion of the court appointing him, he is under no obligations to furnish additional security until required to do so." Jones v. Blun et al. (1895) 145 N. Y. 333, 39 N. E. 954, 955.