AH THAIE, Respondent, v. QUAN WAN & KAN SE, Appellants, 3 Cal. 216

Wells, Justice, delivered the opinion of the court. The appeal in this ease, is brought upon a judgment overruling the demurrer to the complaint. The court below overruled the demurrer, and rendered judgment against defendants, upon the ground that counsel fees necessarily paid to procure a dissolution of the injunction, are recoverable in an action brought upon an injunction bond. It is insisted, that this court has already decided that counsel fees cannot be recovered in an action like this; and the case of Heath v. Lent, 1 California Rep. 412, is cited as authority. In that case, the court, per Hastings, C.

J., laid down the rule, that in an action on a bond for damages accruing from a wrongful suing out of an attachment, counsel fees constitute no part of the damages. We are referred also to a decision of the Supreme Court of Indiana, Davis v. Cowre, 7th Blackford, which it is contended, sustains this rule. As to the first, we say, that Chief Justice Hastings does not base his decision upon the point raised here; besides, even though it may be said, that it decides the point here, we question the correctness of the judgment of the court in that case as it stands, and think it erroneous.

The case in Blackford, it will be perceived, was brought on a replevin bond, and was decided, not according to any general principle of law or equity, but the court clearly bases its decision, and is controlled in its judgment, by the statutes. And with all due deference we may add, that placing it'even upon that ground, upon careful examination of the statutes of the State, neither does that decision meet with our approval. It certainly cannot control the case before us, or guide us in our judgment.

It is sufficient to say, that the cases cited by the appellant, were controlled by the statutes and provisions of the particular States ; and doubtless the opinions delivered were founded upon them. But, notwithstanding these authorities, wé do not entertain the slightest doubt, that an action brought upon an injunction bond, can be maintained in this State, under our statutes, and we concur fully with the decisions of the learned Chancellor Walworth, in Edwards v.

Bodine, 11 Paige, Chancery Reports, 224, 5, in which he holds, that the taxable costs of the defendants, and the reasonable counsel fees paid by them, upon the application to dissolve the injunction, were a part of the damages sustained by them in consequence, of the granting such injunction. The language of the condition of the bond is undoubtedly broad enough to embrace the necessary counsel fees, which the defendants have been obliged to pay out in order to procure the dissolution of the injunction.

For the necessity of paying such counsel fees, is an actual damage that the defendant has sustained, in defending himself, and procuring a dissolution of the injunction, and the condition of the bond is imperative that the “ obligators shall pay to the parties enjoined such damages as they may sustain by reason of the injunction.” It appears to us that the principle is not only just in equity, but sound in law, that all the damages to which a party may be put by the wrongful issuance ofran injunction, should be recoverable in an action upon such a bond, and reasonable counsel fees should be included in those damages; of course, leaving the amount to be assessed by the jury.

As this was the only ground of demurrer to the complaint, it is ordered that the judgment of the court below be affirmed with costs.