
    Joshua H. Noble v. Henry Arnold.
    In an action on an undertaking for an injunction, whereby the plaintiff agrees to pay the defendant “the damages he may sustain by reason of the injunction,” if it be finally decided that it ought not to have been granted. Held:
    
    1. That attorney fees and expenses necessarily incurred in obtaining a dissolution of an injunction, may be recovered as damages secured by the undertaking, when it is finally decided that the injunction ought not to have been granted.
    2. But where the attorney fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses arc not damages sustained by reason of the injunction, and no recovery therefor can be had upon the undertaking.
    3. An indebtedness, or liability to pay attorney fees and expenses, incurred in procuring a dissolution of an injunction, is sufficient damage to sustain an action on the undertaking.
    Error to the District Court of Pickaway county.
    Noble had obtained a judgment against Arnold, in the Court of Common Pleas of Pickaway county. On October 16, 1866, Arnold brought an action in the same court against Noble for a new trial of the case, and obtained an injunction restraining him from the collection of the judgment. Under the order of the court an undertaking was filed in the case, of which the following is a copy :
    “HENRY ARNOLD V. JOSHUA H. NOBLE.
    
      "Court of Common Pleas of Pickaway County, Ohio.
    
    “We bind ourselves to the defendant, Joshua H. Noble, in ¡the sum of one thousand dollars, that the plaintiff, Henry Arnold, shall pay to the defendant, Joshua H. Noble, the damages he may sustain by reason of the injunction in this action, if it be finally decided that the injunction ought not to have been granted. Dated October 16, 1866.
    (Signed,) “Henry Arnold,
    “ T. C. Wallace.”
    
      At the November term, 1866, on the motion of Noble, the injunction was dissolved, and the petition was dismissed. He then brought an action, before a justice of the peace, on the undertaking, to recover the attorney fees and expenses incurred by him in procuring the dissolution of the injunction. Failing to recover before the justice, ho appealed to the Court of Common Pleas.
    After setting forth substantially the foregoing facts, the petition filed in the Common Pleas is as follows:
    “ ’’Thereupon the said Arnold caused to be immediately issued an order of injunction, commanding the plaintiff to refrain from the collection of said judgment, which he accordingly did. And the plaintiff says that at the November term of said court, 1866, he made a motion to dissolve said injunction, subpenaed several witnesses, employed counsel, and attended this court at considerable expense of time and money'in and about the dissolving said injunction. The plaintiff’ incurred a liability to his said counsel, H. F. Page, for $85; to his said witnesses, $5.50; his own necessary expenses, $5; his time, four days, $1.50 — $6. Total, $41.50. That at said term of court said case was heard and said injunction was dissolved, and the said case of the said Arnold decided against him, and it was decided that said injunction ought not to have-been granted, and that said Arnold had no ground for a new trial. Tho plaintiff avers that the said Arnold had no ground whatever for a new trial, but that the said action of his was vexatious. The condition of said bond was broken. The plaintiff asks a judgment against said defendant in the sum of $41.50.”
    To this petition the defendant demurred, and the court sustained the demurrer, and rendered judgment for the defendant.
    Noble then filed his petition in error, in the District Court of Pickaway county, in said case, alleging that the Court of Common Pleas erred in sustaining said demurrer and rendering a judgment for Arnold.
    At the May term of said District Court, a. d. 1868, the case was heard, and the judgment of the Court of Common Pleas was affirmed.
    This petition is filed to reverse the judgment of the District Court, sustaining the judgment of the Court of Common Pleas in sustaining the demurrer to the petition of said Noble.
    
      Henry F. Page, for plaintiff in error :
    The condition of the bond is “to secure to the party-enjoined the damages he may sustain.” Code, sec. 232,
    The object of the bond is to furnish a remedy, and it is the only remedy for damages in such cases. 2 Am. L. Reg., N. S. 546; Derry Bank v. Heath, 45 N. H. 524; Corcoran v. Judson, 24 N. Y. 106; Ryan v. Anderson, 25 Ill. 372; Garnett v. Logan, 19 Ala. 344; Carden v. Martin, 17 Mo. 41; 11 La. An. 39; Hilliard on Injunctions, secs. 54, 178; Garcie v. Sheldon, 3 Barb. 232; Hall v. Fisher, 20 Ib. 441; 44 Barb. 209.
    And the party injured may recover the amount of bills-which he has become legally liable to pay, though he has not yet paid them. Richardson v. Chassen, 34 Legal Obs. 883; 11 Jur. 890; Same Case, 10 Q. B. 756; Kline v. Thompson, 19 Ohio St. 569; Goodman v. Gay, 15 Penn. St. 188; Bancroft v. Winspear, 44 Barb. 209. And see Dixon v. Bell, 1 Stark. 387, and Decker v. Mathews, 2 Kern. 313; S. C., 5 Sandf. 439.
    
      P. C. Smith and W. F. Hurst, for defendant in error:
    The bond was given to secure the payment of the judgment enjoined ; and the obligors in the bond bound themselves to pay the damages only, that Noble might sustain in the action, if the injunction was wrongfully obtained.
    “Damages consist solely of the direct pecuniary loss which includes, in mere money demands, interest for the detention of the money, and the costs of the suit brought for the recovery of the money.”
    No indirect loss is accounted for; no ‘allowance is made for mental suffering, or time consumed; nor for fees actually paid to counsel in the establishment of the demand. Sedg. Damages, 36, 233-239; 1 Chit. Pl. 395; Chit. Bills,. 9 Am. ed. 666a, and n. 1; Curtis v. Inerarity, 6 How. U. S. 154; Edwards on Bills and Notes, 708; Van Rensselaer v. Jewett, 2 Comst. (N. Y.) 135.
    We admit that in the case of Corcoran v. Judson, 24 N. Y. 106, cited by plaintiffs attorney, the court held that reasonable counsel fees might be recovered upon an injunction bond conditioned for the payment of all costs and damages that the defendant might sustain, etc. But. this ruling grows out o.f the fact that in New York, prior to 1860, attorney and counsel fees were a part of the taxable costs in the case. The court also rely on the case of Edwards v. Bodine, 11 Paige Ch. 223; but in that case the counsel fees were allowed and the solicitor’s charge was rejected. We freely admit that it is difficult to understand why counsel fees should be allowed as a part of the damages, and the charge of the solicitor should be rejected; but so it is.
    The same may be said as to the cases cited by counsel from Barbour’s New York Reports.
    The rule, however, is different in other states. See Gadsden v. Bank of Georgetown, 5 Rich. 336; Wallis v. Dilly, 7 Maryland, 237; Bullock v. Ferguson, 30 Ala. 227; Hilliard on Injunctions, 74, sec. 55; Langworthy v. McKelvey, 25 Iowa, 48; Sturgess v. Knapp, 33 Vt. 486; Lockwood v. Safford, 1 Kelly, 72; 7 U. S. Dig. 110.
    The reason of this rule is apparent. The damage that the defendant in an injunction case sustains by reason of the granting of the order of injunction is to be attributed to the error of the court.
    And while every defendant against whom an action is brought suffers some inconvenience and some injury, yet, though making a successful defense, he recovers nothing but his costs. See Broom’s Legal Maxims, 95.
    The policy of the law in Ohio has ever been against the theory of compelling the losing party in a lawsuit to pay the attorney fees of his adversary. See Ohio for, etc. v. 
      Taylor, 10 Ohio, 378; Shelton v. Gill, 11 Ohio, 419; Martin v. Belmont Bank, 13 Ohio, 258.
    The law allowing a docket fee to be taxed as part of the costs was repealed as early as 1844.
    On a breach of a bond for a second trial under the statute, nothing can be recovered but the original judgment, the interest thereon, and the taxable costs, on the two trials, though the condition of such bonds is, that the obligor shall “ pay all moneys, costs, and damages.” S. & C. 1155. The same is true of appeal bonds. Ib. 1165.
    The judgment enjoined in this case was a mere money judgment, and to compel the party obtaining an injunction to stay the collection of a money judgment, to pay any greater damages than one who obtains a stay of execution by taking a second trial, or by appealing his case, would be an anomaly, an excrescence on the law, and would destroy its symmetry.
    Noble, in his action on the bond, can recover no greater damages than the court would have awarded him on the dissolution of the. injunction, had the court retained the case and assessed the damages. Had the court done so, the damages would have been — the judgment enjoined, the interest on the same, and the costs; and nothing more.
    “ There is no doubt that the court having jurisdiction of the matter by the bill filed, might, upon the dissolution of the injunction, have retained the case, and assessed the damages in favor of the plaintiff in this case, arising in consequence of the injunction. There is as little doubt that the court might simply dismiss the bill, and leave the parties to their action at law on the injunction bond.” Roberts v. Dust, 4 Ohio St. 502-506. The rule of damages would be the same in both cases.
    When it is a mere delay in the collection of money, interest always covers the damages. Kent v. Bierce, 6 Ohio, 137.
    As to the proposition that the obligors in an injunction bond are liable under the claim of damages for counsel fees, without actual payment, the authorities seem to be both. ways. In California, it is held that they can not be-recovered before payment. Wilson v. McEvoy, 25 Cal. 169 (25 U. S. Dig. 295). See also Dunn v. Davis, 37 Ala. 95; Proder v. Grimm, 28 Cal. 11 (26 U. S. Dig. 301).
    To hold that counsel fees can be recovered on an injunction bond which was given to restrain the collection of a money judgment, would open the door to endless litigation and fraud. There would be no case where an injunction was dissolved but what an action would at once be brought on the bond, claiming excessive counsel fees, excessive expenses incurred in railroad fares, carriage hire, hotel bills,, loss of time, etc., and the time of courts and juries would be occupied in passing upon the validity, magnitude, and number of these charges. While, on the contrary, to. adhere to the simple rule that has ever prevailed in Ohio, viz.,, that the interest and the costs are the only damages which can be recovered, will be in analogy with the law in second trial and appeal cases, and will preserve the courts from, this mass of unnecessary labor.
   Day, J.

It is apparent from the petition that the injunction granted in the proceeding for a new trial was ancillary only, and not the object of the proceeding. From this fact, and the averment that the petition was dismissed, at the same term in which the injunction was dissolved, the-general language used in the petition does not leave it entirely clear but that the liability, which is the basis of the recovery sought, was incurred in defeating the proceeding, and not alone in procuring a dissolution of the injunction. But we think the latter is the fair construction of the petition. The demurrer, therefore, raises the question,, whether necessary expenses, incurred alone in procuring a dissolution of an injnnotion, may be recovered in an action on an injunction bond or “undertaking.”

To effect an injunction, section 242 of the code requires the party obtaining it, to give an undertaking, with sureties, “to secure the party enjoined the damages he may sustain,, if it be finally decided that the injunction ought not to> have been granted.” The undertaking in this case was given in accordance with, and in the. language of the statute.

It is the undoubted privilege of the party to procure a dissolution of an injunction which has been wrongfully obtained. To the extent of the attorney fees and expenses necessarily incurred for that purpose, he is damaged by the injunction. The express undertaking, is to pay “the damages he may sustain by reason of the injunction,” if it ought not to have been granted. Such expenses, then, come within the damages he is entitled to recover upon the undertaking.

This view is sustained by the weight of authority in the cases where the language of the instrument in suit is similar to that of the undertaking in this ease, and in other analogous cases. Edwards v. Bodine, 11 Paige, 223; Corcoran v. Judson, 24 N. Y. 106; Behrens v. McKenzie, 23 Iowa, 333; Langworthy v. McKelvey, 25 Iowa, 48; Thaie v. Quan, 3 Cal. 216; Prader v. Grim, 13 Cal. 585; Morris v. Price, 2 Blackf. 457; Derby Bank v. Heath, 45 N. H. 524; Ryan v. Anderson, 25 Ill. 372; Garrett v. Logan, 19 Ala. 344.

But as already intimated, a distinction is to be taken between expenses incurred only in procuring a dissolution of :au injunction, and such as are incurred in the defense of an. action, to which the injunction is merely auxiliary, and is not essential to the relief sought.

While, as already stated, we regard the expenses, including reasonable attorney fees, necessarily incurred in procuring a dissolution of an injunction wrongfully granted, as recoverable in an action on the undertaking, when it is finally decided that it ought not to have been granted, we are equally clear that this can not be done, when the expenditure or liability is incurred in defending an action, to which the injunction is only ancillary, and not essential to the relief sought by the action; for it could not then be regarded as damage sustained “by reason of the injunction.”

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.

But it is urged that the demurrer is well taken, because it is not averred in the petition that the attorney fees and expenses were paid, and that without such averment it does not appear the plaintiff had sustained damage. It is true, payment of the expenses is not averred; but it is alleged that the plaintiff had incurred a liability for the several items named in dissolving the injunction.

An indebtedness incurred — a liability to pay — is a damage and we think it. is sufficient to constitute a cause of action on the undertaking.

The demurrer to the petition, therefore, was not well taken. To the extent of the items for attorney fees and costs of witnesses, at least, the petition was good. Whether the other items are recoverable, it is not necessary to decide.

It follows that the judgment of each, of the courts below, sustaining the demurrer, was .erroneous, and must be reversed. The cause will be remanded to the Court of Common Pleas for further proceedings.  