BIioWNING and others
(Circuit Court, E. D. Missouri.
INJUNCTION BOND-WHAT NOT COVERED BY.
January, 1881. )
An injunction bond conditioned to "abide the decision which shall he made thereon, [the original suit,] and pay all sums of money, damages, and costs that shall be adjudged against them if said injunction shall be dissolved," does not and its costs, nor the attorney's cover the amount of the original fees.
2. DISSOLUTION OF INJUNCTION-REMEDY ON THill BOND.
Whcther a court of chancery in dissolving an injunction will itself proceed to assess damages resultlDg therefrom, or drive the defendant to an actlOn at law on the bond, not decided.
In Equity. John H. Overall, for the motion. Edwaril McCabe, contra. TREAT, D. J. A suit in equity was instituted by plaintiffs, and on their motion a provisional injunction issued to restrain proceedings at law on a judgment in a state court. . An injunction bond was given as required, with sureties conditioned to "abide the decision which shall be made thereon, [the original suit,] and pay all sums of money, damages, and costs that shall be adjudged against them, if said injunction shall be dissolved." Said injunction was dissolved and the bill dismissed. A motion is now made for the assessment of damages, to-wit: the amount of the judgment in the state court, $619; costs in state court, $25; attorney's fee in injunction suit, $200. It is clear that the bond did not cover the amount of the original fee. Bein v. Heath, 12 judgment and its costs, nor the How. 176; Oelrichs Spain; 15 Wall. 230.. To the same effect are the Missouri cases cited. Another question was suggested in the light of the authorities produced, viz.: whether a court of chancery, in dissolving an injunction, would itself proceed to assess damages resulting therefrom, or drive the defendant to an action at law on the injunction bond. The motion before the court does not call for a decision on that point, although nothing is seen in the cases cited to deprive the chancery court of its power to finally determine the controversies between the parties before it. The case of Bein v. Heath was an action on an injunction bond, and the dicta in the opinion are very strong. In that case the cou!"t
EX PARTE PETERS.
says: · A court proceeding according to the rules of equity cannot give a judgment againat the obligors in an injunction bond when it dissolves the injunction." Is that dictum to be received as a general rule, or limited to cases It sometimes happens that like that then under injunction bonds are conditioned to pay damages which the court may assess, and hence, unless the court assesses damages, no cause of action arises on the bond. It may be that the provisional injunction is dissolved on motion, before final hearing and decree on the merits, and that on final hearing the decree is for plaintiff, or for defendant, thus varying the matter of costs and damages. That final decree would be operative in a suit on the injnnction bond, so far as its tenor required j and such a decree would, in many cases, be nec" essary to hold the parties to the bond. It is obvious that the several cases on such bonds must defend on the conditions stated j some requiring the antecedent action of the chancery court, and some requiring no such action. It is well settled that of United States courts in equity are not affected by local statutes j and it is supposed to be equally well settled that chancery courts, having obtained jurisdiction of the parties and the controversy, will retain jurisdiction for the final settlement of the whole subject-matter, so as to avoid multiplicity of suits, all incidents of the litigation. . Whatever the true rule may be in that respect, the motion in this case asks for what could not be allowed, either at law or equity. ' Motion overruled. .
(Joun, If. D. Missouri. April, 1880.)
hmICTMENT-SEPA'RATE OFFENCES-,DISTINCT' COUNTII. Separate offences of the same CIMS and growing out of ,tbe
Ilame may be joined in one indictment in.separl'te counts, provided they are such a8 may be .. properly joined."
BU'RGLARy-LA'RCENY FROM: HOUSE-DISTINCT OFFENCES.
A person who breaks into a house with Intent to steal therefrom, and act· ually steals, may be punished under separate. indictments for,'two.. or one, at the election of the power prosecuting him. .. '.·
SAME-HABEAS CORPus-RELEASE DENIED.
A person sentenced under such an indictment cannot be released on on the ground that distinct offences were improperly joined.