Deakin v. Stanton

• Decision Date: 01 November 1879
• Citation: 3 F. 435
• Parties: DEAKIN v. STANTON, impleaded, etc.
• Court: U.S. District Court — Northern District of Illinois

3 F. 435

DEAKIN v. STANTON, impleaded, etc.

United States Circuit Court, N.D. Illinois.

November, 1879

George C. Christian and Charles E. Pope, for plaintiff.

Henry T. Rogers, for defendant.

BLODGETT D.J.

These are two separate cases, upon bonds given by the defendants Lea & Perrin and Stanton, to the complainant, upon the issue of an injunction in a cause in which Lea & Perrin were complainants, and Deakin was defendant, asking that Deakin be enjoined from violating the alleged trade-mark of the complainant on Worcestershire sauce. The cause in which the injunction was issued was brought to hearing and dismissed for want of equity; and the defendant in that suit now brings suit on this bond to recover damages which he sustained by reason of the issuing of the injunction. The first bond was given in the penal sum of $5,000, and is conditioned for the payment of all damages and costs to be awarded against the complainant and in favor of the defendant upon the trial or final hearing of the matter referred to in the bill of complaint.

The second suit is brought upon an additional bond, which was given in the same trade-mark case, upon the suggestion of the defendant that the security given by the first bond was not adequate to cover his probable damages in the case. The condition of the bond is substantially the same as the first. The allegations are that, in defending this suit, the complainant was put to a large expense for solicitors' and attorneys' fees, which the obligors have not paid also, that he sustained a large amount of damage by the breaking up of his business, and that he is entitled to recover the amount of damages sustained in consequence of the issuing of the injunction. These are substantially the breaches that are assigned to this bond.

The defendant demurs on the ground that no damages were awarded at the time of the trial of the cause, and therefore the defendant, who, it appears, signed the bond solely as surety is not liable. It is easy to see why the bond was drawn in the manner in which it is. The practice of the state courts in this state since 1861 has been to award such damages, upon the trial or dissolution of an injunction, as the defendant may have sustained by reason of the issue of the injunction; and probably the counsel used the state court form in preparing the bond, and it was not examined by the court; and probably the only question raised by counsel was as to the sufficiency of the surety. The demurrer, therefore, goes to the question as to whether the surety in these two cases is liable upon the facts stated in the declaration, it being perhaps conceded that there were no damages awarded by the court to the defendant at the time of the dissolution of the injunction, or the final hearing of the case. It is not averred any damages were awarded, and it was said on the argument of this demurrer that none were, and that the practice of this court did not allow the awarding of damages under such circumstances.

An examination of the authorities which have been cited has satisfied me that this action cannot be maintained against the surety upon this bond. I do not care to cite more than the case of Bein v. Heath, 12 How. 168, which was a case precisely similar to this. The court there says 'But the bond in the case before us is not one to pay the damages which the opposing party should sustain by reason of the injunction, but it is to pay the damages that might be recovered against them; obviously referring, we think, to the practice...