Byam v. Cashman

Thornton, J. On the 16th of September, 1885, Cash-man commenced a suit in equity in the circuit court of the United States for the ninth circuit, district of California, against Byam and others, defendants, and in his bill prayed for a writ of injunction, pending the hearing of said suit against the defendants, enjoining and restraining them from the commission of certain acts set forth in the bill, and that on the final hearing the writ be made perpetual.

Upon an application to the judge of the circuit court, the Hon. Lorenzo Sawyer, for the writ prayed for, the judge made an order that the defendants in the action, and each of them, show cause on the second day of November, 1885, why a temporary injunction, as prayed for in the bill, should not be issued, and that the defendants, and each of them, be and are enjoined and restrained, [527]until the decision upon said motion, from committing or suffering any of the acts sought to be enjoined by the said bill of complaint, said preliminary restraining order to issue and take effect upon filing in this cause, approved as directed by the order, a bond in the sum of ten thousand dollars, payable to the defendants, conditioned that plaintiff will pay the defendant such damages, not exceeding the sum above mentioned, as said defendants, or each of them, may sustain by reason of said restraining order, if said court shall finally decide that the complainant was not entitled thereto.

This order was made on the 12th of September, 1885, and on the same day the bond on which this action was brought was filed. This action is brought against Cash-man and two of the sureties on the bond.

The bond has as a caption in the title of the court and cause, following which it is recited therein, that whereas the complainant above named has commenced an action in the court above named against certain defendants (giving their names), and in his prayer for relief has asked for a writ of injunction pending the hearing of said action against said defendants, and enjoining and restraining them from the commission of certain acts, as in the bill of compaint filed in said action are more particularly set forth and described.

Then follows the condition of the bond, which is in these words:—

“Now, therefore, we, the undersigned, George Cashman as principal, C. W. Pierce, Frederick Cox, H. C. Wilson, and N. D. Rideout as sureties, in consideration of the premises (and of the issuing of said writ of injunction), do jointly and severally undertake in the sum of ten thousand dollars ($10,000), lawful money of the United States of America, and promise to the effect, that in case said injunction shall issue, the said complainant will pay to said defendants, the said parties enjoined, such damages, not exceeding the sum of ten thousand