counsel for defending the entire action to which the injunction was merely ancillary. And where no counsel fees have been paid, the defendant, a municipal corporation, defending by its salaried attorney without fee for his services, no counsel fees should be allowed. Nor can defendant lay the foundation for larger damages by employing an unnecessary number of counsel. But to warrant a court in the allowance of counsel fees for procuring a dissolution, it would seem not to be necessary that the fees should have been actually paid; it will suffice that the services have been rendered and the liability incurred.4 $975. An injunction bond being for the benefit of all the defendants enjoined, regardless of whether they are served with process, to entitle one to damages upon a dissolution, it is sufficient that he has rendered himself obedient to the injunction, though the writ may not have been served upon him, and he is then entitled to a reference to ascertain his damages. Nor will the want of jurisdiction in the court over the subject matter of the action in which the injunction was granted, deprive defendant of his right to damages on the dissolution." 5 976. Where a mortgagor obtains an injunction to prevent the mortgagee from selling the premises under a decree in foreelosure, and pending the injunction the mortgagor removes emblements from the premises, the value of the emblements should be included in the damages awarded to the mortgagee upon dissolution." 977. The obligor in an injunction bond given in proceedings in the United States courts, will not be subjected to the laws of the state in fixing his liability upon the bond. And although the state practice permits the assessment of damages 1 Langworthy v. McKelvey, 25 Iowa, 48. 2 Uhrig v. St. Louis, 47 Mo. 528. ' Collins . Sinclair, 51 Ill. 328. 4 Garrett v. Logan, 19 Ala. 344; McRae v. Brown, 12 La. An. 181; Brown . Jones, 5 Nev. 374. But see, contra, Willson v. McEvoy, 25 Cal. 169; Pra der v. Grimm, 28 Cal. 11. 'Cumberland etc. v. Hoffman etc., 39 Barb. 16. • Id. 'Aldrich v. Reynolds, 1 Barb. Ch. 613. and entering of a decree thereon against the obligor immediately upon the dissolution of the injunction, such practice will not be recognized in the United States courts.1 § 978. If the bond is conditioned that the obligor shall pay all sums of money, damages and costs that may be awarded against him in case the injunction is dissolved, the sureties are not liable for the amount of the judgment enjoined, if that be not adjudged against the obligor upon the dissolution. Nor will a misrecital in the bond as to the terms of the injunction and its extent, subject the surety to payment of judgments at law, if from the injunction it appears that the collection of the judgments was not enjoined.3 979. Where a judgment creditor is enjoined from proceeding against certain specific property claimed by a third person, a stranger to the original suit, without interfering with the remedy against other property or against the person of the debtor, who is not made a party to the bill, the court will not, on dissolving the injunction and dismissing the bill, decree the amount of the judgment as a penalty against complainants. So if the injunction is dissolved only as to a portion of the property affected by the writ, which portion has not depreciated in value, and is afterward sold on execution and the proceeds of the sale are applied on the judgments, complainant should not be decreed to pay both the amount of the judgments and the penalty. And where complainant enjoins the sale of his own property under executions against a third person, leaving the executions otherwise in full force as to the debtor's property, the measure of damages in an action upon the bond is the real loss actually incurred, with costs, and not the amount due on the executions." 980. Where an injunction is perpetuated in part, complainant should not be compelled to pay the costs, since he is Bein v. Heath, 12 How. 168. 2 Corder v. Martin, 17 Mo. 41. 3 Hord v. Trimble, 1 Lit. 413. 4 Portsmouth etc. v. Byington, 12 Ohio, 114. Teaff v. Hewitt, 1 Ohio St. 511. Hord v. Trimble, 1 Lit. 413. the prevailing party in so far as the injunction is allowed to stand, and it is error to decree costs against him.1 And in general, wherever an injunction is rightfully obtained upon sufficient grounds, and is afterward dissolved upon the removal of those grounds, complainant should not be required to pay damages upon the dissolution, having had good cause for the injunction in the first instance. Thus, where judgments for the purchase money of real estate are enjoined on the ground of defective title, and a dissolution is granted upon the title being made good, no damages should be allowed against complainant. 3 $981. An injunction obtained by the plaintiff in an action at law, to preserve property pendente lite, being dissolved, no reference should be allowed to ascertain damages sustained by defendant by reason of the injunction until the suit at law is determined, since it can not be known until the action is determined whether the plaintiff may not recover in the action at law. And it may be laid down as a general rule, that no action at law can be maintained upon the bond until the final determination of the cause in which the injunction issued, even though the injunction has been dissolved upon appeal and the cause remanded for further proceedings, since complainant is still entitled to proceed with his cause, and may on final hearing establish his right to an injunction." 1 Ross v. Gordon, 2 Munf. 289; Hoofman v. Marshall, 1 J. J. Marsh. 64. 2 McKoy v. Chiles, 5 Monr. 259; Payne v. Wallace, 6 Monr. 381; Porter . Scobie, 5 B. Mon. 387; Lampton v. Usher's Heirs, 7 B. Mon. 57; Fishback v. Williams, 3 Bibb, 342. 'Porter v. Scobie, 5 B. Mon. 387; Lampton v. Usher's Heirs, 7 B. Moë 57; Fishback v. Williams, 3 Bibb, 342. Thompson . McNair, 64 N. C. 448. 3 Gray v. Veirs, 33 Md. 159. CHAPTER XXII. OF PRACTICE. I. PRACTICE IN GRANTING INJUNCTIONS. III. PRACTICE IN DISSOLVING INJUNCTIONS. I. PRACTICE IN GRANTING INJUNCTIONS. § 982. Practice largely dependent upon statutes and local usage. 983. Writ usually granted on bill; may be granted on petition. 984. Verification of the bill. 985 Verification of bill by corporation. 986 Requisites of the verification. 987 When verification may be dispensed with. 988 Injunction must be specifically prayed. 989. When the writ may be granted. 990. All facts and documents must be brought to the attention of the court. 991. Introduction of affidavits in opposition to the motion. 992. Introduction of affidavits in support of the bill. 993. Notice of the application. 994. Notice of the application upon a supplemental bill. $982. Questions of practice connected with the granting and dissolving of injunctions are so largely regulated by statute and local usage in the different states, that but few rules of general application can be deduced from the decided The most that can be attempted in this direction, is to present such leading principles as are believed to be generally recognized by courts of equity in administering relief by injunction, leaving the practitioner to be guided by local rules as to the details of practice. cases. § 983. Interlocutory injunctions are generally granted upon the filing of a bill, properly verified, in which complainant sets forth the equities on which he bases his right to relief, the bill concluding with a prayer for an injunction. Where, however, a court of equity is already in possession of a cause, having jurisdiction both of the subject matter in controversy and of the parties, it may enforce obedience to its mandates by an injunction issued merely upon a petition in the cause and without the filing of a bill.1 an 984. The proper verification of the bill is a matter of importance, since an injunction is seldom allowed upon other than a sworn bill. Nor will it suffice that the material facts constituting the equity on which the injunction is sought are verified by complainant upon information and belief, but they should be positively sworn to. And where, upon ex parte application for an interlocutory injunction, complainant states the facts on which his equities rest upon information and belief, he should present affidavits of their truth from the persons of whom his knowledge is obtained and who can swear positively to the facts.3 An exception, however, is recognized in the case of an injunction in aid of a creditor's bill against the judgment debtor alone, no third parties being joined as defendants, and in such case it is sufficient if complainant swears upon information and belief as to the recovery of the judgment and return of execution nulla bona. The exception rests upon the fact that the judgment and execution are matters of record, to which defendants are parties, and complainant is not required to swear positively as to the existence of the records.5 So, too, the verification of an injunction bill in aid of a creditor's 2 'In the matter of Hemiup, 2 Paige, 316. Campbell v. Morrison, 7 Paige, 157; Reboul's Heirs v. Behrens, 5 La. 79; Catlett v. McDonald, 13 La. 44. 3 Campbell v. Morrison, 7 Paige, 157; Bank of Orleans v. Skinner, 9 Paige, 305; Youngblood v. Schamp, 2 McCart. 42. 4 Hamersley v. Wyckoff, 8 Paige, 72; Sizer v. Miller, 9 Paige, 605. 5 Id. |