Opinion
No. 3332.
Decided June 2, 1942.
A bond conditioned "to pay and satisfy all such damages" as might be occasioned by the improper granting of an injunction conforms to Rule of Court 133 ( 78 N.H. 708) and includes as "such damages" counsel fees incurred in establishing the impropriety of granting the injunction. In such case where the defendant's other damages are merely nominal they should not exceed one dollar.
PROCEEDING, for assessment of damages on a bond given in connection with an injunction later held improperly granted. The condition of the bond was "to pay and satisfy all such damages" as might be occasioned the obligee by reason of the injunction proving to be improper.
A master allowed as damages amounts for counsel fees incurred in securing a dissolution of the injunction and for deprivation of access to the obligee's land by the way the use of which the injunction forbade. To the acceptance of the master's report in these allowances the plaintiff excepted. A bill of exceptions was allowed by Connor, J.
Hughes Burns and Walter A. Calderwood, by brief, for the plaintiff.
Cooper, Hall Grimes, by brief, for the defendant.
The bond conformed with Superior Court Rule 133 ( 78 N.H. 708), and the meaning of the word "damages" as it pears in the rule is broad enough to include counsel fees incurred in establishing the impropriety of the injunction. The view that the expense of litigating the validity of the injunction is not a damage, is too narrow a one to invite discussion. Omission of the word "expenses" does not bar expenses from the inclusion of damages. The cases claimed to support the view either negative it or are neutral in regard to it. Rule 133 was not intended to modify the scope of earlier rules (Chancery Rule 36 adopted in 1859; readopted in 1875; Superior Court Rule 108 adopted in 1902). The bond, being given pursuant to the rule, is to be construed no differently.
The claim that both parties understood that when the bond was given it was not intended to cover counsel fees is not an issue presented in the case.
Since the defendant's other damages were nominal, their allowance should not exceed one dollar.
Exception as to counsel fees overruled: exception as to other damages sustained.