Derry Bank v. Heath , 45 N.H. 524 ( 1864 )

Nesmith, J.

In this action, the plaintiffs are entitled to recover whatever damages, they may in fact have sustained by reason of the forfeiture of the condition of the bond in suit. Blaisdell v. Blaisdell, 14 N. H. 81. The damages to the plaintiffs are such as naturally result from the dilatory operation of the bill in equity, and the injunction which stayed plaintiffs’ suit at law, and the costs incident to such legal proceedings. It is understood that the decision of the court was adverse to the maintenance of the bill in equity by the defendant, because there was a full and adequate remedy at law for his complaint.

The first claim for damages made in this case by the plaintiffs is for such interest on their note in the suit at law, as accrued during the time of the pendency of the bill in equity, or the stay of the suit at law. We think, however, that, before the plaintiffs should be allowed for this item of their claim, they should make it appear by satisfactory evidence to the court, that the signers to the note of the plaintiffs embraced in their suit at law, had become insolvent; or, in some other way, without fault of the plaintiffs, they had suffered damage to an amount equal to such interest.

The plaintiffs should be allowed, during the time they were delayed by the defendant’s injunction, their legal taxable costs both in the suit at law and the bill in equity, provided the same has not or cannot be realized, from the parties, defending the suit at law, or prosecuting the said bill in equity.

The plaintiffs should also be allowed, as damages in this case, such reasonable counsel fees as they have paid, or are liable to pay to their counsel, for the same time, in both cases.

In this class of injunction bonds, courts are authorized to proceed on liberal grounds, and upon such principles as will give adequate indemnity for the injury or loss, which has been occasioned to the innocent party who has suffered from unjust delay. Some of the rules applicable to this class of cases are well discussed in Parish & al. v. French & al., 14 N. H. 497.

Under the agreement of the parties,

This case is discharged.