§ 28. The defendant in an injunction suit may plead the damages he has sustained by it, in reconvention, or have an action on the bond. But where a defendant sues and obtains. judgment at law upon the bond, he cannot afterwards have execution out of the Court of Chancery upon it.2 § 29. It is a good defence for sureties in the bond, that the complainant was corruptly induced to dismiss his bill, so that the sureties might become liable.3 § 30. An injunction against a judgment, on the ground of usury, having been properly dissolved, usury cannot be set up as a defence to a suit in chancery to set up the lost bond.' § 31. After parties have obtained an injunction, it is too late for them to set up, as a defence to the suit on the bond, a want of jurisdiction to grant the injunction." $ 32. With reference to the pleadings in an action upon an injunction bond; the bond declared on must be described with such precision, certainty, and clearness, as fully to apprise the defendants of the cause of action which they are required to answer. It is sufficient to set forth such facts as constitute a breach. The extent of the damages is 3 Boynton v. Robb, 22 Ill. 625. &c., 2 Ala. 153. In Texas, when the damages sustained by the defendant, by the issuing of an injunction, grow out of other matters than the collection of money, and present questions of difficulty; inasmuch as the statute does not imperatively require them to be settled in the main action, a separate suit may be brought therefor on the injunction bond. Hammonds v. Belcher, 10 Tex. 271. A scire facias will lie upon an So, though the injunction bond, in North Carolina, it being made part of the record by statute of 1810. Bozman v. Armistead, 2 Taylor, 183. bond was made before that statute was passed. Bozman v. Armistead, 2 Taylor, 264. matter of proof for the jury. Thus, when the condition is to pay the balance due upon a certain judgment specifically mentioned and set forth in a decretal order of the court, bearing a particular date, and ten per cent. thereon; the precise amount of such judgment need not be stated in the declaration, that being a matter of proof, on trial. § 32 a. Where, in an action on an injunction bond, the recitals and condition of which mentioned a judgment, the defendant pleaded a general performance, the plaintiff assigned a breach, the defendant rejoined nul tiel record, and the plaintiff surrejoined, traversing the rejoinder, and issue was joined to the court, who found that there was such record; and the plaintiff afterwards introduced a record as evidence to the jury, to support the issue joined on the plea of nul tiel record, to which the defendant objected: held, the defendant's rejoinder would have been held bad if demurred to; that the issue was correctly tried by the court; and that the defendant, having admitted, by his pleading, every fact which the record could establish, could not complain of its admission as evidence, whether competent or not, and although such evidence might be unnecessary.3 upon 33. The obligor in an injunction bond cannot, in a suit. the bond, plead that he did not obtain any injunction.* § 34. The summary judgments on bonds taken for injunc tions under the statute of 1841, in Texas, after the conditions. are forfeited, are not in derogation of the right of trial by jury, or of other constitutional rights." 35. Where a bond was taken, which did not in any way comply with the statute, but bound the obligors absolutely to pay the penalty, if the injunction should be dissolved, and 1 Tallahassee v. Hayward, 4 Flori. 411. 2 Ibid. Hardey v. Coe, 5 Gill, 189. Lloyd v. Burgess, 4 Gill, 187. 5 Janes v. Reynolds, 2 Tex. 250. not to pay the amount of judgment and costs; held, summary judgment could not be rendered.1 $36. In reference to what constitutes a breach of an injunction bond; if the plaintiff dismisses his bill, the defendant has an immediate right of action on the bond, and need not wait till the order of dismissal is confirmed at the next term of court. But an injunction bond is not broken so long as the injunction remains in force; nor when an injunction has been dissolved and then reinstated.3 $37. A bond conditioned, that, if the defendant shall cause certain property (specified) "to be forthcoming, to be subject to the final order of the court," &c., and "shall abide by and perform such orders and decrees as the said court shall make in the said cause," &c., was construed, ut res magis valeat quam pereat, to require the defendant to abide. by and perform such orders and decrees as the court shall make touching the property specified, which was to be forthcoming, &c., and not to require the performance of any decree which the court might make. (See § 39.) § 38. A suit was brought upon an injunction bond, after the injunction had been dissolved by the Circuit Court, but while an appeal was pending in the Supreme Court, and an order was in force staying all further proceedings therein until further order by the court. The defendant pleaded in bar that no cause of action had accrued at the time the suit was commenced. The plaintiff filed a replication, that, at a day subsequent to the commencement of the suit, the decree of the Circuit Court was affirmed. Held, the replication was not responsive to the plea, and was insufficient." $39. The surety in an injunction bond is liable only ac Janes v. 2 Roach v. Reynolds, 2 Tex. 250. Aldrich v. Kirkland, 8 Rich, Eq. 5 Scott v. Fowler, 14 Ark. 427. See Spevey v. M'Gehee, 24 Ala. 476. Gardner, 9 Gratt, 89. 349. 3 Bentley v. Joslin, 1 Hemp. 218. Thus suit cording to the strict terms of his undertaking. was brought against a surety on a bond, which described the judgment enjoined as being for $2,300 and costs. Held, a judgment for $2,346, and costs, though answering the description in other respects, could not be shown. Also, as the bond undertook to describe the judgment fully, the petition for injunction could not be referred to for another description of it. So an injunction bond, conditioned to cause certain property "to be forthcoming, to be subject to the final order of the Court of Equity in a certain cause," &c., and to "abide by and perform such orders and decrees as the said court shall make in the said cause," was construed, in an action thereon against the surety, not to require the principal debtor to pay, absolutely, any money decree which the court might pronounce. It was held that, before the recovery could be had, the plaintiff must show a failure to produce the property specified, and the damage sustained by reason of such failure. (See § 37.) § 40. In an action on a bond given on obtaining an injunction to stay a suit at law, it may be alleged and shown, that, by reason of the delay in obtaining judgment and execution, occasioned by the injunction, the property of the defendant in the suit was so wasted, sold, incumbered, and disposed of, that the plaintiff at law lost his debt.* § 41. Damages may be recovered on an injunction bond, when the injunction has been improperly sued out. As to the mode of recovery, the practice is not uniform. It is held that, upon the removal of an injunction prohibiting the collection of money, the court should render judgment for the sum enjoined, and the damages assessed, against the principal and his sureties. While, on the other hand, the obligors in 6 1 Hall v. Williamson, 9 Ohio (N. S.), 17. 2 Ibid. 3 Aldrich v. Kirkland, 6 Rich. 334. Tryon v. Robinson, 10 Rich. 160. 6 Gelston v. Whitesides, 3 Cal. 309. 6 Cook v. Garza, 13 Tex. 431; Burr v. Burton, 18 Ark. 214. the bond, given on enjoining a judgment, are, on dissolution of the injunction, liable to pay the judgment, though no damages are awarded against the complainant In a late English case, one claiming copyright in the work of a foreigner assigned to him obtained an injunction, on giving an undertaking to abide by any order of the court respecting damages the defendant might sustain by reason of the injunction. The House of Lords (after conflicting decisions in the courts of law) decided that the plaintiff had no title to copyright, and the injunction was dissolved without opposition. The defendant moved for an inquiry as to damage, but one of the vice-chancellors refused it, and merely dismissed the bill with costs, refusing the plaintiff's motion to dismiss without costs. Held, upon appeal, that the defendant was entitled to an inquiry what, if any, damage he had sustained. 42. But in the United States Court it is held, that a court of equity cannot order the complainant and his sureties on an injunction bond to pay the damages sustained by reason of the injunction. The defendant must resort to an action on the bond. And it is doubted whether Congress could confer such a power. So in Illinois, except in cases of injunctions to restrain actions at law, damages cannot be awarded on the dismissal of an injunction bill. And, in California, when an injunction is dissolved, and the suit dismissed by the plaintiff's action, this constitutes no admission improperly sued out, which must be proved before that it was damages can be recovered.' § 43. Where a bond is conditioned for the payment of such damages as may be sustained from the suing out of the injunction, "should the same be dissolved," a recovery can |