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for which the party might have an action on the case, if no bond were required.

This is the only case we have been able to find going near to sustaining this action. It is a solitary case-it stands alone, and that fact is some evidence that it is out of the track of wellreceived judicial decisions. On the principle that this action is not to be encouraged, it seems surprising such a decision should have been made, especially where the injured party had a more efficient remedy, and in pursuing which, he would not be required to show a want of probable cause.

We hold the remedy on the bond given on obtaining the injunction, is all the remedy to which the injured party can resort. It is designed by the statute, to cover all damages the party enjoined can possibly sustain, and it is in the power of the judge or officer granting the writ to require a bond in a penalty sufficient to cover all conceivable damages. This bond is a high security which the law requires the complainant in a bill for an injunction to execute, to indemnify the defendant, in case the injunction shall be dissolved. It is a familiar principle, when a party has taken a higher security, his suit must be brought on that security. Toussaint vs. Martinnant, 2 T. R. 104; Cutler vs. Powell, 6 Id. 324. The bond becomes, when forfeited, the cause of action, and is intended by the law, to measure the damages of every kind which the party may sustain by wrongfully suing out the injunction in case it is dissolved. It is not at all like the official bonds of sheriffs. They are made payable to the people of the State, not to any particular person, and consequently, do not merge a remedy one may have outside of the bond, and besides, it is the policy of the law to multiply the remedies against public officers. Not so with the injunction-bond, that is made payable to the defendant. He is the only person interested in it. It is his security. It is all the law gives him as his security, and he is bound to sue on the bond. Were no bond given or required, then the action might lie. This action on the case, under the circumstances shown, cannot and ought not to be maintained. It is against public policy. For these reasons, the judgment is reversed.

Judgment reversed.

to the courtesy of Hon. E. Peck, the reporter. We regard the question involved as one of considerable practical import

ance.

For the foregoing case we are indebted ney-General vs. Mayor of Liverpool, 1 Myl. & Cr. 171-210. And it was recently held in an important case, where the question was elaborately examined, that the party obtaining an injunction, and giving bonds in such sum as the court ordered to indemnify the other party against consequential damages, in the event of the suit failing, could not be amerced in damages beyond the amount of the penalty of the bond. Sturges es. Knapp, 33 Vt. Rep. 486.

I. It has been regarded as long settled in the English courts of equity, that the suffering party, by reason of the operation of an injunction out of chancery, had no redress by means of an ordinary action upon the case. His only legitimate redress was upon the bond, or what is the English practice, a deposit of money by way of indemnification, if any was required by the judge issuing the injunction. The English courts of equity do not allow costs to the party against whom an injunction had improvidently issued, upon its dissolution, where the party obtaining the injunction had fully stated his case, so that the error in granting the injunction might fairly be said to be that of the court and not the fault of the party. But where the applicant for an injunction fails to maintain the facts upon which it is granted, he becomes liable to costs, and these may be awarded, as between. attorney and client. Illingworth vs. Manchester and Leeds Railway Co., 2 Railw. Cas. 187. The Lord Chancellor, COTTENHAM, said, "Is the evil which has arisen from the injunction having been made, and the expense of having it discharged, to be attributed to the error of the court, or to the false representation of the case by the plaintiffs? Certainly the latter. The costs were therefore properly given to the defendants." And if the party obtain an injunction upon one state of facts, he cannot, upon failing to prove that, fall back upon another which is proved, and which, if it had been alleged, might have equally entitled him to the injunction. But in such cases costs are sometimes denied. Greenhalgh vs. Manch. and R. Railw., 1 Railw. Cas. 68; Attor

It was here held, that if the court, in granting the injunction, specially order that the party praying for it, shall respond in damages to the party against whom it is granted, to the full extent sustained by him, then it is competent for the Court of Chancery to estimate the same, by reference to a master, or in any other proper mode, and the same may be recovered by the party to whom they are awarded, by an action at law. In Garcie vs. Sheldon, 3 Barbour 232, the court held a different view upon this point, maintaining that the party sustaining damages had no remedy to recover the same unless upon a bond ordered by the court for his indemnity. See also Hall vs. Fisher, 20 Barbour 441.

It seems to be agreed on all hands that where there is no order for the payment of damages, and no bond required, there can be no recovery in any form. Lexington and Ohio Railroad Co. vs. Applegate, 8 Dana R. 289. This subject is discussed by the United States Supreme Court in Bein vs. Heath, 12 Howard U. S. Rep. 168.

II. But upon principle we do not perceive why any of the cases to which we have referred deny redress, where an injunction is obtained upon a state of facts known by the party obtaining it to be false in material particulars, and where there was no probable cause for the proceeding, and this well understood by the party moving it, and where

the thing was moved by mere malice. This is ordinarily a good foundation for an action for malicious suit, and it does not appear from the decided cases, that it is important that the malicious suit should be by an arrest of the body of the defendant. But if that were required, we should regard the duress produced by an injunction out of chancery as fully equivalent. We had occasion to examine the cases upon this

general question very extensively in the
case of Barron vs. Mason, 31 Vermont
R. 189. From this examination we
should incline to believe that the deci-
sion in Cox vs. Taylor's Administrator,
10 B. Mon. 17, is entirely well founded
in principle, but that in practice no
such actions have been instituted, as the
courts of equity are entirely competent
to deal with offenders of this character
in a summary way.
I. F. R.

Court of Appeals of New York.

ELIAS W. GROSS et al. vs. JOSHUA G. BEARD.

The owner of a vessel is entitled to recover against one who has chartered it or shipped goods on it, for unreasonable and improper delay in unloading the cargo, by which such owner has been for a time unjustly deprived of the use of his vessel, or suffered other damage.

It is usual in charter-parties to insert an agreement that a specified time shall be allowed for loading and unloading, and that it shall be lawful for the freighter to detain the vessel for those purposes a further specified time on payment of a daily sum. And where the contract is thus precise, the shipper of the freight is held strictly to its terms; and accidental delay, such as stormy weather, prohibition of export, &c., though arising from no fault of his, will not excuse him from payment of the demurrage.

But where no period of delay is fixed by the contract, the rule is different. There a reasonable time is implied, and this is to be determined upon in view of all the circumstances legitimately bearing upon the case, and is a question for a jury.

Opinion of the Court by

DENIO, C. J.—The Supreme Court was plainly right in holding that the owner of a vessel is entitled to recover against one who has chartered it, or has shipped goods on board of it, for an unreasonable and improper delay in unloading the cargo by which such owner has been for a time unjustly deprived of the use of his ship, or has otherwise suffered damage. The thorough examination which that question has received at the hands of our learned brother who prepared the opinion of the Supreme Court, appears

to have convinced the plaintiff's counsel, for the contrary position is not asserted in the printed argument submitted upon this appeal, although the point is understood to have been taken on the motion for a nonsuit made at the trial. Although there was not in the agreement for carrying these goods any stipulation as to the time to be allowed for discharging them at their port of destination, they were consigned to the defendant by his own agents, and he was as much bound to receive them within such time and in such a manner as not to embarrass or damage the plaintiffs in the enjoyment of the use of their vessel, as the plaintiffs were to carry the cargo safely to the port to which it was consigned. In every contract between two parties, where the performance by one of them presupposes and requires some act to be done by the other party prior thereto, or contemporaneously, the neglect or refusal to perform such act not only dispenses with the obligation which the other was under to perform on his part, but, where the circumstances are such, that, as in this case, a rescission of the contract will not afford an adequate remedy to the party who was ready to perform, he is entitled to a recompense against the delinquent party equal to the damage which such delinquency has caused him. This principle has often been applied to cases where the owner or shipper of goods has failed promptly to receive them at the port of delivery so as to restore the vessel. to the general use of the owner in a reasonable time. The following authorities, most of which are commented on in the opinion of the Supreme Court, either expressly affirm the principle, or, taking it for granted, apply it to the solution of other questions. Abbott on Shipping 304; Horn vs. Bensusen, 9 Carr. & P. 709; Evans vs. Foster, 1 Barn. & Ad. 118; Brouncher vs. Scott, 4 Taunt. 1; Rodgers vs. Forrester, 2 Camp. 483; Burmester vs. Hodgson, Id. 488; Hill vs. Idle, 4 Id. 327; Clendaniel vs. Tuckerman, 17 Barb. 184. But the question presented by this appeal requires a consideration of the excuses which the shipper of goods or the charterer of a vessel may set up to excuse a delay in discharging the cargo; and upon this part of the case I think there is a distinction which has been overlooked by the Supreme Court. It is usual in charter-parties to insert an agreement that a specified number of

sent in a general This delay and the Where the contract held strictly to its

days shall be allowed for loading and unloading, or for one of those operations, and that it shall be lawful for the freighter to detain the vessel for those purposes a further specified time on payment of a daily sum (Abbott 303). A contract to the same effect is often inserted in the bill of lading, when goods are ship: Harmon vs. Gandolphe, Holt's N. P. 95. payment agreed upon are called demurrage. is thus precise, the shipper of the freight is terms. Thus, a municipal regulation of the port prohibiting intercourse for a limited period, by means of which there was a delay in loading, a delay occasioned by frost, or by the prohibition of a foreign government to export the stipulated cargo, or by customhouse restraints, or by unlawful seizure of some part of the cargo, do not relieve the shipper from payment of demurrage. The merchant, as Lord ELLENBOROUGH says in speaking of this subject, is the adventurer who chalks out the voyage: Barker vs. Hodgson, 3 M. & C. 267, Abbott 310. But the rule is somewhat different when no period of delay is fixed by the contract. There, a reasonable time is implied, and this is to be determined upon by a regard to all the circumstances legitimately bearing upon the case; and it is a question for the jury. Thus, in Randall vs. Lynch, 2 Campb. 352, forty days for loading and unloading were allowed by the terms of the charter-party, and also 51. per day for the next ten days of delay. Owing to the crowded state of the London docks, the ship was detained beyond the forty days. Lord ELLENBOROUGH said that a person who hires a vessel detains her, if, at the end of the stipulated time, he does not restore her to the owner. added that he was responsible for all the various vicissitudes which prevent him from doing so. And he further said that he considered the dock company the defendant's agents, and that the defendant was as much responsible for a delay arising from the want of a berth as if it had arisen from tempestuous weather or any other cause. It is obvious that this and the other similar cases are based upon a consideration that the shipper, by fixing upon a number of days of delay, becomes the insurer against casualties of the kind mentioned, which may prevent the loading or unloading within the

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